Over the weekend, President Trump nominated Amy Coney Barrett, United States Circuit Judge of the United States Court of Appeals for the Seventh Circuit, to fill the open Supreme Court seat. Since this is an ***check notes*** employment law blog, many of you may be wondering how Judge Barrett would decide an employment law case on the Supreme Court.
I would too.
So I researched Judge Barrett and found some recent blogworthy rulings.
Of course, past performance does not guarantee future results. But, you may be thinking that a Republican nominee is going to be pro-employer. Well, if you come back later this week, you’ll see some cases in which Judge Barrett sided with the employee-plaintiff too.
Bill Murray’s lawyer claps back.
But before I get to Judge Barrett and the Americans with Disabilities Act, I need to bring you up to speed on Bill Murray and The Doobie Brothers.
Here’s a quick recap: last Wednesday, an attorney for The Doobie Brothers sent a hilarious cease and desist letter to Bill Murray, claiming that his golf company was using the hit song Listen to the Music without paying for it. On Friday, Bill Murray’s lawyer fired back.
Was it snarky? Yes. Was it petty? Yes. Should you read it? Of course!
Judge Barrett and the Americans with Disabilities Act.
Let’s start with an employer-friendly Barrett decision involving an alleged failure to accommodate under the Americans with Disabilities Act.
And not just any ADA case, this one involves a Zamboni driver. And not just any Zamboni driver ADA case; it’s one about which I have already blogged. Very nice!
What was the alleged ADA violation?
Well, apparently, the plaintiff was injured on the job in early 2015. He returned to work in May with certain medical restrictions, including the requirement that he work sitting down. The rink tried to accommodate the plaintiff by assigning him to the task of skate sharpening. The employer asserted that skate sharpening was a job that the plaintiff could perform while sitting down. The plaintiff disagreed.
But, here’s the thing: the plaintiff never told his employer that skate sharpening violated his work restrictions.
How do you think that played out? The lower court entered summary judgment in favor of the employer. But, what happened on appeal? Cue Judge Barrett:
Identifying reasonable accommodations for a disabled employee requires both employer and employee to engage in a flexible, interactive process. If an employee does not provide sufficient information to the employer to determine the necessary accommodations, the employer cannot be held liable for failing to accommodate the disabled employee….[Plaintiff] acknowledges that he did not make [Defendant] aware of his belief that his skate sharpening assignment didn’t comport with his medical restrictions. This is a textbook example…
That makes sense to me. Generally speaking, a disabled employee that needs a workplace accommodation must check three boxes:
✅Inform the employer that s/he has a disability
✅Request an accommodation
✅Tell the employer what accommodation(s) will and won’t work
This should be a good-faith, interactive process. The two sides must work together to determine what the employer can do to help the employee perform essential job functions. Here, the employee didn’t do enough to allow his employer to help him.
What can employers do avoid this sort of issue in the future? It starts with having an ADA accommodation policy in your employee handbook. (While you’re at it, double-check to make sure that you have one for religious and pregnancy accommodations too.)
Additionally, while the ADA does not guarantee employees their first choice of accommodations, I like doing so when the employee’s preference does not create an undue hardship for the business. I like it for two reasons. First, you’re giving the employee what s/he wants, and what employee wouldn’t like that? Good for you; you’ve just earned points. Second, if the accommodation does not enable the employee to perform the essential functions of the job, the employee can’t blame the company for failing to provide a reasonable accommodation.
But, if you end up providing the employee something other than his or her first choice of accommodations, ask the employee to document why s/he believes it may not work. If the employee doesn’t do so, then you should be good to go. Otherwise, continue that interactive dialogue to see what else you can do to help.