discrimination – Page 6

June 4, 2019June 29, 2023

Proposed Law Wants to Convert ‘Anti-Vaxer’ Into a Protected Class

With a couple of important exceptions, an employer can require that employees be up to date on their vaccinations.

The exceptions?

1. An employee with an ADA disability that prevents him or her from receiving a vaccine may be entitled to an exemption from a mandatory vaccination requirement as a reasonable accommodation.

2. An employee with a sincerely held religious belief, practice, or observance that prevents him or her from receiving a vaccine may also be entitled to an exemption from a mandatory vaccination requirement as a reasonable accommodation.

A recently proposed Ohio looks to significantly expand these exceptions by elevating “unvaccinated” to the equivalent of a class protected from discrimination.

The misleadingly named Medical Consumer Protection Act would prohibit an Ohio employer from discharging without just cause, refusing to hire, or otherwise discriminating against any person on the basis that the person has not been or will not be vaccinated because of a medical contraindication or for reasons of conscience, including religious beliefs. It would also create a private cause of action allowing an employee to file suit over violations and seek compensatory and punitive damages.

I had a roommate in college who was fond of telling me that my opinion was wrong. I would tell him, “My opinion is my opinion. It might be misinformed. You might disagree with it. But it can’t be wrong.” It’s Hyman’s Law of Opinions. Today, I decree the following amendment to Hyman’s Law:

* … except in the case of vaccinations. If you oppose vaccinating yourself or your children, your opinion is wrong, period (unless you have a bona fide medical condition or religious belief that prevents you from receiving said vaccinations). Otherwise there’s no reason not to vaccinate. If you don’t care about your own health, care about the health of all of those around you, and the public health risks and costs you are helping create.

And if you happen to be an anti-vaxer and take issue with Hyman’s First Law of Opinions (as amended), you’ve brought the measles back from extinction. Case closed.

So I give a big thumbs down to the Medical Consumer Protection Act. It’s both unnecessary (by protecting from employment discrimination those whom the law already protects) and wildly over broad (by also protecting those who are unvaccinated “for reasons of conscience”).

Thankfully, this poorly conceived piece of legislative policy will never become an actual law.

May 29, 2019June 29, 2023

Does the Attorney-Client Privilege Protect Harassment Probes Conducted By a Lawyer?

An employee complaints to HR that her supervisor has been sexually harassing her.

The allegations aren’t pretty, and, if the investigation is mishandled (or even if it’s handled perfectly), you are reasonably confident that the employee will sue the company. Thus, you want to ensure that every “i” is dotted and “t” crossed in the investigation. So, you bring in the big guns to handle the investigation—the company’s attorney.

At the conclusion of the investigation, the lawyer recommends that the company suspend, and not fire the harasser. That decision leads to the victim filing suit.

During her lawsuit, the employee requests a copy of the investigatory report. You refuse, claiming it’s protected by the attorney-client privilege.

Who wins that fight? Does the court compel you to disclose the report, or does it protect it from disclosure as privileged?

In Barbini v. First Niagara Bank, a federal court recently addressed this very issue. It concluded that the lawyer’s investigatory report is not privileged and ordered its disclosure.

1. Not legal advice. Not all communications between lawyer are client are privileged communications. The attorney-client privilege protects communications that are primarily or predominantly of legal in nature, the interpretation and application of legal principles to guide future conduct or to assess past conduct. It does not, however, protect communications that involve the business or operations of the employer that do not otherwise rely upon the interpretation and application of legal principles. When a lawyer fills the role of an investigator of workplace misconduct, the attorney is filling a business role, not a legal role. Thus, the privilege does not attach to protect the communications. The lawyer is no longer the company’s lawyer, but a fact witness as to what occurred.
  (Sidebar: the lawyer/investigator will also have a conflict of interest precluding him or her from representing the company in the litigation, so don’t retain your litigation counsel to conduct the investigation unless you are prepared to find new litigation counsel for that case.)
2. Waiver. If the employer wants to be able to rely upon the investigation at all as part of its defense to the harassment claim, then it is going to have to waiver any attorney-client privilege that otherwise might attach to and protect the investigation. The employer might need to prove that the promptness and thoroughness of its investigation. It might need to prove the reasonableness of its corrective action. It might be asserting a Faragher/Ellerth affirmative defense, or advice of counsel affirmative defense (as was the case in Barbini). In any of those instances, privilege will have to be waived, and the investigatory report, along with all of its related documents, will have to be produced.

As an employer, you should want to rely on your harassment investigation to prove the reasonableness of your response to the complaint. If you are trying to keep the investigation from the plaintiff-employee, in my mind it only begs the question of what skeletons you are trying to hide.

And, in this case, you are probably better off settling the case than digging in your heels and fighting a privilege fight you shouldn’t really be fighting in the first place.

May 28, 2019June 29, 2023

What Does a Valid Jury Waiver Look Like?

Earlier this year, the Senate took up the Forced Arbitration Injustice Repeal Act.

It would, among other things, prohibit employers from requiring employees, as a condition of employment, to sign agreements submitting employment and civil rights claims to arbitration in lieu of filing in court. According to Vox.com, this legislation has some initial bipartisan support, and has some legit traction to perhaps become law.

I am on record as not being a fan of arbitration for employment disputes. I do not believe they are any less expensive or time consuming that in-court litigation. In stead, I’ve previously argued for tools such as contractually shortened statutes of limitations and jury waivers as tools employers can to limit risk instead of arbitration agreements.

What does a jury waiver look like, and in what circumstances do courts enforce them? A recent Ohio appellate decision provides the answer.

In Kane v. Inpatient Med. Servs., the employer required its employees, as a condition of employment, to sign an employment agreement that contained the following jury trial waiver.

Waiver of Jury trial. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

In her sex discrimination lawsuit, Kate Kane argued that her discrimination claims should have been tried by a jury because the jury trial waiver did not expressly mention discrimination claims within its umbrella of coverage. The appellate court disagreed.

Undoubtedly, the waiver provision is broad. It encompasses “any litigation directly or indirectly arising out of or relating to this agreement and any of the agreements delivered in connection herewith or the transactions contemplated hereby or thereby.” This Court must conclude that Ms. Kane’s claims alleging discriminatory termination at the very least indirectly arise out of or relate to Ms. Kane’s employment agreement.

She also argued that the jury trial waiver as a whole was invalid, as she did not she did not voluntarily, knowingly and intelligently waive her right to a jury trial. Again, the appellate court disagreed, noting that courts apply the following five factors to determine if a “jury waiver was was entered into knowingly, voluntarily, and intelligently.”

The conspicuousness of the provision of the contract;
The level of sophistication and experience of the parties entering into the contract;
The opportunity to negotiate terms of the contract;
The relative bargaining power of each party; and
Whether the waiving party was represented by counsel.

In this case, the court concluded that the five factors merited the enforcement of the jury waiver.

We note that while the provision appears towards the end of the agreement, the provision is nonetheless conspicuous as it appears in all capital letters while most of the agreement does not. Ms. Kane has not argued she was unaware that the provision was in the agreement. Ms. Kane is a college-educated professional with experience negotiating contracts. In fact, there was evidence that Ms. Kane negotiated a higher salary prior to accepting an offer of employment. There was no evidence presented that would indicate Ms. Kane did not have a meaningful choice with respect to the waiver. And while the record does not indicate whether Ms. Kane was represented by counsel at the time she was offered a job, the employment agreement does contains a clause indicating that Ms. Kane “had the opportunity for th[e] Agreement to be reviewed by counsel[.]” Ms. Kane’s mere assertions that she did not understand she would be waiving her right to a jury trial for these claims is insufficient under the circumstances to demonstrate that the waiver was not entered into voluntarily, knowingly, and intelligently. We cannot say that the waiver is unduly complicated or confusing such that someone of Ms. Kane’s background would not have understood the scope of the right she was waiving.

Thus, if you seek for employees to contractually waiver their right to a jury trial, you should ensure:

The waiver is in writing.
It is clearly and conspicuously delineated within an agreement, such that employee is not likely to miss it upon reading the contract.
It is written in language for which it is reasonable for the employee to understand.
The possibility of negotiation of any terms of the employment agreement is at least a possibility.
If offers the opportunity for the employee to have their own counsel review it before the employee signs.

And, while it’s tempting merely to ape the language used in Kane, you should really have your own employment counsel review a jury waiver before you implement it in your own employment agreements.

I love the Kane case, because it gives employers something to think about other than, “Everyone else loves arbitration agreements, so we do too.” After careful deliberation, you might decide that arbitration agreements are the correct answer for your employees and your business. Before making that decision, however, consider the risks, benefits and alternatives. You might just decide that jury waiver is the right solution.

May 22, 2019June 29, 2023

In Harassment Cases, the Context of Profanities Matters (But Only Sometimes)

Editor’s note: This post contains extremely graphic language.

“Why is everyone suddenly using the C-word?” asks Stan Carey in The Guardian. He blames Game of Thrones (video very NSFW — you’ve been warned).

Assuming Stan’s correct, and more people are becoming more comfortable openly using this generally considered highly offensive and taboo word, how should you react if your employees start using it among each other? Swiftly and decisively, that’s how.

Consider Reeves v. C.H. Robinson Worldwide, which decided the issue of whether vulgar language to which all employees (male and female) are equally exposed is actionable as sexual harassment.

The court made a clear distinction between general, gender-nonspecific swear words, such as shit and fuck, (maybe improper, but not necessarily unlawful) as compared to gender-specific epithets such as bitch, whore, and the granddaddy of them all, cunt (unlawful harassment).

[T]he context may illuminate whether the use of an extremely vulgar, gender-neutral term such as “fucking” would contribute to a hostile work environment. “Fucking” can be used as an intensifying adjective before gender-specific epithets such as “bitch.” In that context, “fucking” is used to strengthen the attack on women, and is therefore relevant to the Title VII analysis. However, the obscene word does not itself afford a gender-specific meaning. Thus, when used in context without reference to gender, “fuck” and “fucking” fall more aptly under the rubric of general vulgarity that Title VII does not regulate. …

[W]ords and conduct that are sufficiently gender-specific and either severe or pervasive may state a claim of a hostile work environment, even if the words are not directed specifically at the plaintiff. … It is enough to hear co-workers on a daily basis refer to female colleagues as … “cunts,” to understand that they view women negatively, and in a humiliating or degrading way. The harasser need not close the circle with reference to the plaintiff specifically: “and you are a ‘bitch,’ too.” …

“Cunt,” referring to a woman’s vagina, is the essence of a gender-specific slur. …

The social context at C.H. Robinson detailed by Reeves allows for the inference to be drawn that the abuse did not amount to simple teasing, offhand comments, or isolated incidents, but rather constituted repeated and intentional discrimination directed at women as a group, if not at Reeves specifically. It is not fatal to her claim that Reeves’s co-workers never directly called her a “bitch,” a “fucking whore,” or a “cunt.” Reeves claims that the offensive conduct occurred “every single day,” and that the manager “accepted and tolerated that same behavior” over her repeated complaints. If C.H. Robinson tolerated this environment, it may be found to have adopted “the offending conduct and its results,” just as if the employer affirmatively authorized it.

Thus, while general vulgarities are not typically actionable as harassment, severe or pervasive gender-specific words or phrases are actionable even if the words are not specifically directed at one employee, but are merely generally used in the workplace. The aforementioned “c-word” is the perfect example.

The takeaway for employers? Words are sometimes not just words, and businesses should respond to complaints about coarse or vulgar language as they would to any other complaint of harassment. An employer cannot just assume that words are harmless and ignore the complaint. And if you do, you’re just being a … .

May 16, 2019June 29, 2023

Abortion Discrimination = Pregnancy Discrimination

Thanks to, among other states, Alabama, Georgia, and Ohio, the debate over abortion is raging.

Suppose you are staunchly anti-abortion, and you learn that one of your employees is considering, or has had, an abortion. Can you fire her?

Thus far, three courts have looked at this issue, and all three courts have all reached the same conclusion.

No.

The latest, Ducharme v. Crescent City Déjà Vu, L.L.C. (E.D. La. 5/13/19), concerned an employee fired after requesting two days off to have an abortion. She claimed pregnancy discrimination, and the court held that Title VII’s prohibition against pregnancy discrimination also prohibits abortion discrimination.

The court finds that abortion is encompassed within the statutory text prohibiting adverse employment actions “because of or on the basis of pregnancy, childbirth, or related medical conditions.” While an abortion is not a medical condition related to pregnancy in the same way as gestational diabetes and lactation, it is a medical procedure that may be used to treat a pregnancy related medical condition. … [A]n abortion is only something that can be undergone during a pregnancy. Title VII requires that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes.” A woman terminated from employment because she had an abortion was terminated because she was affected by pregnancy.

This case aligns with the only two appellate courts to rule on the issue, the 3rd and 6th Circuits, as well as the EEOC’s interpretation of the definition of pregnancy.

Case closed. If you learn that one of your employees is having, or has had, an abortion, do yourself a favor and just let her be. Her choice, for which you cannot punish her. Moreover, unlawful discrimination notwithstanding, I promise you that the decision she is making is painful enough, without you exacerbating her pain by firing her.

For more on this case, head over to the Employer Handbook Blog, where Eric Meyer covered it yesterday.

May 8, 2019June 29, 2023

Workplace Civility Shouldn’t Be Something We Have to Legislate

Workplace harassment isn’t illegal unless it is harassment because of some protected characteristic (sex, race, age, religion, national origin, disability, or any other class protected by law).

Generalized workplace bullying or other mistreatment is not illegal unless it falls into one of those categories. Indeed, as the Supreme Court has repeatedly reminded us, workplace discrimination laws are not “a general civility code.”

Just because the federal workplace discrimination laws are not “general civility codes” does not mean that individual states can’t do more with their own laws.

For example, consider Tennessee’s Healthy Workplace Act. It encourages anti-bullying and respectful workplace policies by granting immunity to an employer from lawsuits alleging negligent or intentional infliction of emotional distress if that employer adopts such a policy. Tennessee even provides a Model Abusive Conduct Prevention Policy [pdf].

As originally drafted, Tennessee’s law only applied to public employers. Last week, Tennessee amended it to apply to all employers in that state.

Bravo to Tennessee for taking a stand against abusive bosses and other bullies at work. But also, how sad that we need a law to tell employees to treat each other like, well, like people.

The [Insert Entity Name] is firmly committed to a workplace free from abusive conduct as defined herein. We strive to provide high quality products and services in an atmosphere of respect, collaboration, openness, safety and equality. All employees have the right to be treated with dignity and respect.

The policy prohibits employees from:

Repeated verbal abuse in the workplace, including derogatory remarks, insults, and epithets;
Verbal, nonverbal, or physical conduct of a threatening, intimidating, or humiliating nature in the workplace; or
The sabotage or undermining of an employee’s work performance in the workplace.

And it requires supervisors to:

Provide a working environment as safe as possible by having preventative measures in place and by dealing immediately with threatening or potentially violent situations;
Provide good examples by treating all with courtesy and respect;
Ensure that all employees have access to and are aware of the abusive conduct prevention policy and explain the procedures to be followed if a complaint of inappropriate behavior at work is made;
Be vigilant for signs of inappropriate behaviors at work through observation and information seeking, and take action to resolve the behavior before it escalates; and
Respond promptly, sensitively and confidentially to all situations where abusive behavior is observed or alleged to have occurred.

Such admirable goals. It’s just so sad that we need to legislate them into existence.

So here’s my version of the Healthy Workplace Act (and sorry for the language, but I figure we’re all adults here):

Don’t be an asshole!

The rest will take care of itself.

April 29, 2019June 29, 2023

I Really Thought People Knew Better Not to Advertise Jobs ‘for Whites’

Cynet Systems, an IT and engineering staffing company, had a viral mess on its hands over the weekend after it posted a job that asked for candidates, “Preferably Caucasian.”

Helana McCabe asked a very simple question on Twitter:

Uh, hey @cynetjobs – what’s with this?

Your job listing for a mid-senior level business development position’s top qualification is “Preferably Caucasian”

How could you POSSIBLY think that’s okay?

Uh, hey, it’s very, VERY not OK.

Her tweet, at the time of publication, received 11,249 likes, 6,752 retweets, and 622 comments.

It took Cynet Systems 44 hours(!) to respond, with this tweet:

Cynet apologizes for the anger & frustration caused by the offensive job post. It does not reflect our core values of inclusivity & equality. The individuals involved have been terminated. We will take this as a learning experience & will continue to serve our diverse community.

Its CEO, Nikhil (Nick) Budhiraja, initially tweeted that the job posting was a “terrible mistake,” and that the person responsible had been sent for retraining. Apparently, someone told him that the company needed to take a stronger stand against racism, because that tweet no longer exists, and “sent for retraining” is now “terminated.”

A few thoughts.

First, what the holy hell? Do we not know better in 2019 (not to mention, 2009, or 1999, or 1969 … or, really, ever) that we can’t advertise jobs for “Caucasians”? This is HR 101. There should not be any lesson that needs to be taught here, period.

Second, you can prefer age, sex, religion, or national origin, but only if it’s a bona fide occupational qualification for the position. To qualify as a BFOQ, a job qualification must relate to the essence, or to the central mission, of the employer’s business. A classic example of a BFOQ is safety-based mandatory retirement ages for airline pilots. Race or color, however, can never, ever be a BFOQ.

Third, this is not a training problem. If your recruiters do not know that they cannot prefer white candidates, they should not be recruiting for you.

Finally, 44 hours is way too late to respond to a 2019 crisis. When a story goes viral, your company needs to get out in front of it immediately. As bad as this crisis is, Cynet Systems made it that much worse by waiting almost two full days to publish its response. Cynet Systems has now been labeled as a racist company. The offensive job posting certainly created that perception, but its 44-hour delay in responding let the story, and the perception it created, percolate and fester. Every hour you let a viral story go un-responded-to adds time exponentially to undo the harm, if it can ever be truly undone.

So let this be a lesson to you and your business. Know who’s hiring for you, know what they are posting and do not wait to respond to bad press or bad social media.

April 24, 2019June 29, 2023

This Disability Discrimination Lawsuit Was No Party

Party City has agreed with the EEOC to pay $155,000 to settle an ADA lawsuit the agency filed on behalf of a rejected job applicant on the autism spectrum and suffering from severe anxiety.

According to the lawsuit, the individual had been receiving services from Easter Seals of New Hampshire to build up her self-confidence, including working and applying for a job. These services included a job coach.

When the Party City interviewer learned that the woman accompanying her to her interview was a job coach, the EEOC alleged that his entire attitude changed.

The hiring manager told the job coach that Party City had hired people with disabilities with job coaches in the past and that it had not gone well, and made disparaging comments about those employees. Although both the applicant and the job coach explained to the hiring manager that the applicant had been successful shadowing others in previous retail jobs, the hiring manager was uninterested in either the applicant’s abilities or in the limited role the job coach would play. … The hiring manager tried to cut the interview short by telling the job coach in a patronizing tone, “Thank you for bringing her here,” while the applicant was still in the room. The hiring manager also stated, in the applicant’s presence, that the Party City employee who had encouraged the applicant to apply would hire anyone, and would “even hire an ant.”

Per EEOC regional attorney Jeffrey Burstein, “Federal law requires employers to consider disabled job applicants based on their abilities, not on demeaning stereotypes.” Adds Kevin Berry, director of the EEOC’s New York District Office, said, “Allowing this applicant to work with a job coach in her early weeks of employment would not have caused an undue burden on Party City. The ADA requires employers to make this type of reasonable accommodation so as to enable qualified people with disabilities to join the workforce, which is a win-win for everyone.”

Four takeaways from this lawsuit and settlement:

1. An employer’s obligation to consider and offer reasonable accommodations does not just extend to employees, but also to applicants. Employers cannot shirk their ADA responsibilities just because the person needed the accommodation is just an applicant.
2. Past bad experiences with other employees or applicants are not a valid reason to deny a reasonable to a current employee or applicant. Reasonable accommodations are individualized, and must be considered on an individual-by-individual basis. Telling someone that you can’t offer an accommodation because of past bad experiences with others is a recipe for an expensive (and difficult to defend) lawsuit.
3. A job coach is potential reasonable accommodation you must consider when presented by a disabled employee or applicant. You have to then engage the individual in the interactive process and determine how to offer that accommodation, if possible.
4. Party City did the right thing by recognizing that it mishandled this applicant and settling this lawsuit through early mediation. It could have avoided the whole problem, however, by ensuring that those involved in hiring for its stores understand their reasonable accommodation obligations to disabled applicants. Indeed, I’d go so far as to say that no one should be doing any interviewing or hiring without ADA and reasonable accommodation training. This risk is just too great.

April 23, 2019June 29, 2023

Does Title VII Protect Heterosexuals From Discrimination?

So meet, ROBERTa! Shopping in the women’s department for a swimsuit at the BR Target. For all of you people that say you don’t care what bathroom it’s using, you’re full of shit!! Let this try to walk in the women’s bathroom while my daughters are in there!! #hellwillfreezeoverfirst

Suppose you own a company, and one of your employees posts this rant on her personal Facebook page.

Further suppose that in addition to owning the company, you are also a lesbian and take offense to the employee’s views. If you discipline the employee for her Facebook post, and later fire the employee after she complains about the discipline, can the employee sue for retaliation under Title VII? In other words, does Title VII protect heterosexuals from discrimination in reaction to anti-LGBTQ speech?

In O’Daniel v. Industrial Service Solutions, the 5th Circuit said no.

The case put the plaintiff, unabashedly and vocally anti-LGBTQ (as expressed in the at-issue Facebook post), in the position of arguing that Title VII protects against discrimination on the basis of sexual orientation.

The court held that under its own precedent, O’Daniel could not move forward on her claim.

O’Daniel claims in essence that she was retaliated against because she “opposed” discrimination perpetrated against her on the basis of her heterosexual orientation.… Title VII in plain terms does not cover “sexual orientation.” … Because the law in this circuit is clear, we cannot accept O’Daniel’s … suggestions that this panel either overrule the precedents or assume arguendo that the “trend” has upended them.

Thus, because the 5th Circuit does not recognize sexual orientation as class Title VII protects, and employee’s complaints about her employer discriminating against her because she is heterosexual could not support a retaliation claim: “Title VII protects an employee only from retaliation for complaining about the types of discrimination it prohibits.”

Two points to make about this opinion.

First, if Title VII equates LGBTQ discrimination to “sex” discrimination (as I, like many other courts and the EEOC, believe it does), then logic says that it must also protect heterosexuals from discrimination at the hands of the LGBTQ community because of their sexual orientation. Any other result is logically inconsistent.

Second, this employee was not fired because she complained about discrimination. She was fired because she exhibited extremely poor judgment through her Facebook rant. As the concurring opinion succinctly and correctly states: “Simply put, Title VII does not grant employees the right to make online rants about gender identity with impunity.”

If the employee ranted against interracial marriage, and the company’s African-American owner fired her, would anyone think she has a valid claim? This case is no different. The law protects the employee from discrimination and retaliation, but it does not protect the employee’s right to express bigoted views on her personal Facebook page or otherwise.

April 16, 2019June 29, 2023

ADA Does Not Require a New Supervisor as a Reasonable Accommodation

Cindy Tinsley was so stressed.

How stressed was she?

Tinsley was so stressed that even something as simple as her co-workers at Caterpillar Financial Services bouncing stress balls off the ground would trigger her post-traumatic stress disorder.

Tinsley, who worked as a business system analyst for Caterpillar Financial, believed that the stress of her job was causing her to suffer adverse health issues. She emailed her supervisor, Paul Kaikaris, asking to be removed from a particular project, claiming that her “many [work] responsibilities … [were] causing [her] to be stressed beyond what [she was] physically able to handle,” which “negatively impact[ed her] work, sleep, and overall health.”

Kaikaris met with Tinsley and said he would see what he could do to take work off her plate. Six days later, however, Tinsey submitted a doctor’s note requesting four days off for a “confidential medical condition.” Upon her return, Kaikaris, good to his word, met with her and reassigned some of her projects.

Her job performance, however, continued to suffer. Kaikaris informed Tinsley that she was not following the prescribed methodology for completing her work, the quality of her work was subpar, and she had been leaving work early without prior approval. A poor formal mid-year review and a performance improvement plan followed.

In response, Tinsley claimed that Kaikaris rated her poorly and assigned the PIP in retaliation for her complaints that he had enabled a “hostile work environment” by permitting co-workers to bounce stress balls off the ground. Thereafter, Tinsley began submitting doctors’ notes ad seriatum requesting more time off for “mental and emotional duress brought on by an over-excessive workload, unrealistic deadlines, a hostile work environment and a manager’s reckless indifference to [her] mental and emotional well-being.” Those notes culminated in the company granting a five-week FMLA leave of absence.

At the end of Tinsley’s FMLA leave, her doctor cleared her to return to work “at full capacity.” However, because of her “post-traumatic stress disorder,” her doctor recommended that Caterpillar Financial return her “in a different work environment and specifically under a different manager.” The company refused the transfer or managerial change, but did permit her to take an additional eight weeks of medical leave (totaling 18 for the year).

At the end of that leave, and with Tinsley still insisting on a new manager, Caterpillar Financial decided that it had enough. It told her that it could not accommodate her “confidential” medical condition and that it did not believe that her request for a transfer to a different supervisor was a reasonable accommodation.

In Tinsley v. Caterpillar Financial Services, the 6th Circuit agreed.

Tinsley has asserted that her impairment (PTSD) impacted only the major life activity of working.… Thus, we must now examine whether Tinsley’s PTSD sufficiently limited her ability to perform a class of jobs or a broad range of jobs. The evidence demonstrates that it did not.… [T]he record is replete with undisputed evidence showing that Tinsley’s issues stemmed directly from Kaikaris’ management style as opposed to the responsibilities of a broad range of jobs. The clearest example of this is when Tinsley told Human Resources that she would be able to continue in the same position so long as she was under the direction of a different supervisor because her disability was triggered by “the way [Kaikaris] managed … with all the balls bouncing.” … Tinsley’s diagnosis does not limit her ability to work a broad class of jobs; rather, it relates solely to her ability to work under a specific manager. Accordingly, she is not “disabled” pursuant to the ADA and was thus not entitled to a reasonable accommodation of additional time off or a transfer.

The ADA covers working as a major life activity. However, for an employee to be “substantially limited” in that major life activity, it is not enough to be unable to perform the specific job. The employee must be “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities.”

This court reached the absolute correct result. It wasn’t that Tinsley couldn’t work as a business system analyst but that she just could not work under Kaikaris. Her own doctor said as much when he released her to return to work “at full capacity.”

If faced with a disabled employee claiming a substantial limitation in their ability to work, examine the request carefully. The ADA’s coverage of disabilities is broad. However, it is often difficult for an employee to establish “working” as a substantially limited major life activity. And, unless the employee cannot work in a class or broad range of jobs, the ADA does not cover them and you don’t have to offer to accommodate.