Did it just get a little more difficult for an employee in the Ninth Circuit to assert a substantial limitation on the ability to interact with others? In a case involving an alleged mental disability, a divided Ninth Circuit panel found that a municipal police officer who was diagnosed with ADHD as a child, and who stopped taking medication at the age of 12 but nonetheless continued to experience interpersonal problems throughout childhood, adolescence, and in his job, including being described by his peers as “tyrannical, unapproachable, noncommunicative, belittling, demeaning, threatening, intimidating, arrogant and vindictive,” was not substantially limited in his ability to work or to interact with others within the meaning of the ADA.
The officer joined a city police department in 1995 after passing a battery of tests, including psychological evaluations. At that point, he did not disclose his childhood ADHD diagnosis. During his time with the department, he had communication issues, was seen as abrasive and intimidating, and was removed from a detective team because of personality conflicts with another officer.
Communication issues. When he was subsequently hired by the Hillsboro Police Department in 2006, he disclosed what he described as “intermittent interpersonal communication issues” he experienced at the other department. He also disclosed his history of ADHD. While his first year evaluation at HPD was generally positive, his supervisor admitted that a few members of the department considered him to be arrogant.
A year later, he was promoted to sergeant. He continued to have communication issues, however, and in 2009, he was placed on leave after a subordinate filed a grievance against him. While on leave, he met with a clinical psychologist who concluded that he suffered from ADHD. The officer then contacted the city’s HR director, informed her of his diagnosis, and requested all reasonable accommodations, including reinstatement to his position as an active-duty sergeant.
Termination. Despite his request, the officer was terminated when an investigation into the grievance revealed that he had created and fostered a hostile work environment for his subordinates and peers. According to the investigator, the officer “has demonstrated time and again unacceptable interpersonal communication that suggests he does not possess adequate emotional intelligence to successfully work in a team environment, much less lead a team of police officers.”
Jury verdict. The employee then sued, alleging among other things that the city fired him because he had an impairment that limited his ability to work or interact with others. Although a jury found that he was disabled, and the court below denied the city’s motion for judgment as a matter of law, the panel majority reversed.
No limit on ability to work. The Ninth Circuit first found that the evidence did not show that the officer was limited in his ability to work compared to “most people in the general population.” To the contrary, there was evidence showing that he was in many respects a skilled police officer. Not only did he and his psychologist testify that he developed compensatory mechanisms that helped him overcome the impediments of ADHD and succeed in his career, his supervisors recognized his knowledge and technical competence and selected him for high-level assignments.
In addition, the panel majority noted, before receiving any treatment for adult ADHD, he was promoted to sergeant. In 2009, a psychologist and a physician/psychiatrist both deemed him fit for duty as a police officer. Given the absence of evidence that his ADHD affected his ability to work, and in light of the strong evidence of his technical competence as a police officer, the appeals court found that a jury could not reasonably have concluded that his ADHD substantially limited his ability to work.
Mere trouble getting along with coworkers. As to his assertion that he was disabled because his ADHD substantially limited his ability to interact with others, the court noted that unlike many of its sister circuits, in McAlindin v County of San Diego, it specifically recognized interacting with others as a major life activity. In McAlindin, however, the court cautioned that this “of course does not mean that any cantankerous person will be deemed substantially limited in a major life activity. Mere trouble getting along with coworkers is not sufficient to show a substantial limitation.”
Limitation must be severe. Rather, the court cautioned in McAlindin, the limitation must be severe. For instance, the Ninth Circuit pointed out, it held in Head v. Glacier Northwest, Inc., that a plaintiff who avoided crowds, stores, large family gatherings, and even doctor’s appointments and who did not leave the house for weeks after losing his job, offered sufficient evidence of disability to survive summary judgment.
No substantial impairment. Finding that the evidence here differed starkly from McAlindin and Head, the panel majority noted that while the officer experienced recurring interpersonal problems throughout his life, which had significant repercussion on his career as a police officer, those problems did not amount to a substantial impairment of his ability to interact with others within the meaning of the ADA. While the court found that his ADHD “may well have limited his ability to get along with others,” that was not the same “as a substantial limitation on the ability to interact with others.”
Unlike the plaintiffs in McAlindin and Head, the court pointed out, the employee here was able to engage in normal social interactions. His interpersonal problems existed almost exclusively in his interactions with his peers and subordinates, the court stated, observing that he had little difficulty comporting himself appropriately with his supervisors. “As we wrote in McAlindin, a ‘cantankerous person’ who has ‘[m]ere trouble getting along with coworkers’ is not disabled under the ADA,” the court explained.
Citing to the Second Circuit’s decision in Jacques v. DiMarzio, Inc., the court observed that one who is able to communicate with others, though his communications may at times be offensive, “inappropriate, ineffective, or unsuccessful,” is not substantially limited in his ability to interact with others within the meaning of the ADA. “To hold otherwise would be to expose to potential ADA liability employers who take adverse employment actions against ill-tempered employees who create a hostile workplace environment for their colleagues.” Thus, the court concluded, no reasonable jury could have found the employee disabled under the ADA.
Dissent. In a lengthy dissent, however, Judge Callahan argued that while, to the casual observer, the officer may not have appeared disabled, “that doesn’t give a panel of appellate judges license to brush away the contrary medical evidence and jury findings. Mental disabilities that cause socially unacceptable behavior are less obvious than physical disabilities, but the Americans with Disabilities Act protects those suffering from either form of disability equally,” the judge wrote.
Judge Callahan pointed out that a jury of the officer’s peers sat in a courtroom for four days, observed and listened to him as well as his coworkers, doctors, and wife, dutifully deliberated on the evidence, and found that he was disabled and that he was discharged because of his disability in violation of the ADA. “Now on appeal, the majority decides that it knows better. It reweighs the evidence on a cold record and issues its own diagnosis: [the employee] isn’t disabled, he’s just a jerk. Therefore, the City was free to fire him.”
In coming to this conclusion, the dissent argued that the majority usurped the jury’s role, gutted McAlindin, and replaced “our circuit’s standards with those announced in another circuit’s patently incompatible decision, Jacques v. DiMarzio, Inc.” Stating that the majority may not have liked the employee, “or at least the picture of him that it paints based on a cold record,” Judge Callahan wrote that “the outcomes of our disabled litigants’ cases should not turn solely on the amount of sympathy they inspire. The law protects the disabled, not the likeable.”
By Lisa Milam-Perez, J.D.
“I can’t believe I still have to protest this shit.” The sign—hoisted in defiance by a young woman in the aftermath of the police shooting in Ferguson, Missouri, that ended the life of a young, unarmed black man—quickly went viral as the ongoing unrest in that town continued into a second week. In times like these, we’re left wondering whether the United States will ever truly overcome the racial discord that can seem permanently woven into the nation’s DNA.
My reaction is not unlike that young protester when I read contemporary cases of egregious racial harassment in the workplace. Not so much the failures-to-promote, the disparate impacts, the subtle biases that likely will always be with us, I fear. But the nooses, the “ni**ers,” the KKK graffiti adorning the bathroom walls of America’s employers? I can’t believe I still have to write about this stuff.
At CSX Transportation, employees alleged they were subjected to racial slurs like “porch monkey” and “spook” on the bathroom walls, along with the “n” word, and images of the Confederate flag were displayed at regional facilities. Vulgar racial slurs were frequently used in the presence of black employees (and their supervisors, who did nothing to stop them). At shipbuilder Austal USA (the defendant in a number of such cases in recent years): allegations that nooses were hung repeatedly in the workplace, coworkers wore Confederate flag t-shirts, black men were called “boys” and “monkeys,” and had to view drawings of stick-figure hangmen with racist captions. Graffiti graced the bathroom walls there too, bearing such aspersions as “ni**ers travel in packs just like monkeys,” “How do you keep ten ni**ers from raping your wife? Give them a basketball,” and ominous threats like “the KKK is getting bigger.” Austal repeatedly scrubbed the graffiti off the walls until, conceding defeat, it finally painted them black.
At a YRC Worldwide terminal, nooses were displayed in conspicuous areas, occasionally in locations frequented by management, and stayed there for extended durations. One black forklift driver found one hanging from his forklift. Graffiti in the form of “KKK,” racial slurs, and death threats were a constant fixture on bathroom walls there too. Coworkers displayed racist tattoos and symbols; some had Confederate license plates and flags on their cars. Black employees were called “ni**er” and similar epithets at least twice a week. At Yellow Transportation, nooses were strung along doorways, windows, and equipment. Black employees faced insults and intimidation, with comments such as “Get a rope,” “N***** must die,” — sometimes right in front of management — and the occasional destruction of personal property. The graffiti at that worksite included drawings of monkeys, references to lips, and swastikas.
An Atlanta manufacturer, sued by the EEOC, had subjected African-American employees to violent, racist graffiti, including nooses, Confederate flags, swastikas, “KKK,” “white power,” and other physically threatening epithets, including “die, ni**er, die,” “ni**er, go home,” and “we coming to get you ni**ers.” In another case, a federal jury awarded $25 million to a former employee of a shuttered ArcelorMittal steel plant in Lackawanna, New York, who endured “KKK” and “King Kong lives” graffiti repeatedly being sprayed on the walls, racial epithets regularly tossed about the workplace (with management’s tacit approval), and a stuffed monkey with a noose around its neck hanging from the driver’s side mirror of his car. After the employee had filed his discrimination complaint, a white coworker placed a sign on the door of his work booth that read “Dancing Gorilla.”
In the cases noted above, the employees prevailed on their race discrimination claims, or at least survived summary judgment. But that’s not always so. A suit brought against Northrop Grumman Shipbuilding failed because the claims were deemed insufficiently severe or pervasive, despite the presence of nooses in the workplace on two separate occasions, along with evidence of racially derogatory writings, depictions, and graffiti. There was racial animus, a federal court found, but not enough to constitute a racially hostile work environment, considering “the totality of the circumstances.” It was the totality of circumstances defense that helped Tyson Foods escape liability for decades of racial harassment alleged by an employee, including nooses, KKK graffiti, and references to “monkey” and “boy,” which the district court had conceded were “overtly racial.” But these were isolated incidents, the court found. Infrequent. Insufficiently severe. To state a viable claim, he would have to endure still more.
These particular events unfolded in U.S. workplaces during just the last few years—only a few of the cases that made their way to federal court. No doubt a mere drop in the bucket, if you ponder the myriad discrimination claims never brought. That’s why I bristle at comments that overt race discrimination is a thing of the past. If only that were true. But in our workplaces, and on our streets, there is much yet to be done.
An employer that coerced an employee to work during her intended FMLA leave period and, subsequently, reassigned her based on her allegedly poor performance during that period, may well have been harmed the employee in violation of the FMLA, despite protestations that the employee received her full salary during this period and so had not “legal damages,” ruled the Eleventh Circuit in its recent decision Evans v Books-a-Million.
“Go live” date. In January 2006, a payroll manager for national book retailer Books-A-Million advised her employer that she was pregnant. At that time the employee was involved in the implementation of a new payroll system, which was scheduled to “go live” by August 2006. In June, she approached her supervisor to discuss necessary paperwork for her FMLA maternity leave, to become effective on her due date, September 1, 2006. As the time approached for her to deliver her baby, her department was behind schedule in implementing the new payroll system. The “go live” date had been pushed back until November 2006.
Subsequently, the employee was advised that management had decided that she “would not go on leave but would work while on maternity leave.” Despite the employee’s protestations that she did not intend to work after the birth of her child, her supervisor repeatedly told her that she was “really needed.” Moreover, the employee was advised that successful implementation of the new system would account for 50 percent of her annual bonus. Given her supervisor’s insistence, the employee felt she had “no choice” but to continue to work from home after the birth of her child. She was given a laptop computer that would enable her to work from home after her delivery.
In defending its actions against the employee’s claim that her FMLA rights were violated, the employer argued that the employee had no “legal damages” because she was paid for her work.
A district court brought that argument, but the Eleventh Circuit concluded that it erred by dismissing the employee’s FMLA claim.
Work from home. The employee gave birth on August 30, and upon arriving home from the hospital with her newborn on September 1, she immediately began answering work-related calls. For the next two months, the employee was required to work nearly full-time from home. She also had to attend meetings on the new system. However, she was paid her full salary while she worked from home. According to the employee, she returned to the office a week and a half earlier than she originally planned. Upon her return, her supervisor’s attitude toward her was cold and hostile. In the meanwhile, the employee was transferred to a newly created risk manager position, and the company advertised for a new payroll position that included all the employee’s former duties. The employee protested and declined to accept the risk manager position. Thereafter, she was terminated and denied a bonus.
The employee’s filed a complaint alleging, among other things, that Books-A-Million interfered with her right to take parental leave by forcing her to work from home immediately after she gave birth. The district court granted the employer’s motion for summary judgment dismissing the claim. This appeal followed.
FMLA interference. On appeal, the employee alleged that the district court erred in dismissing her FMLA claim. To prove FMLA interference, the employee had to demonstrate “that [she] was denied a benefit to which [she] was entitled under the FMLA,” and that she had been prejudiced by the violation in some way. Here, the district court concluded that the employee suffered no “legal damages” because she was paid for her work. However, the Eleventh Circuit found this conclusion was error. The FMLA provides explicitly for two (distinct) categories of remedies: (1) “damages,” including compensation, benefits, and other monetary losses sustained by reason of the violation; and (2) “such equitable relief as may be appropriate, including employment, reinstatement, and promotion.”
The appeals court observed that it was clear that, in order to prove that she was “prejudiced” by an FMLA violation, the employee need only demonstrate some harm remediable by either “damages” or “equitable relief.” In addition to the question of whether the employer interfered with the employee’s FMLA rights, there were other unresolved issues of material fact requiring a trial, such as whether she was “prejudiced” by any FMLA interference. A reasonable fact finder could conclude that her supervisor emphasized job performance while the employee was home with her newborn. Moreover, any prejudice or harm suffered by the employee may be remediable by reinstatement or “front pay” if reinstatement is not viable.
Last week, Minnesota Governor Mark Dayton issued an executive order directing all state government agencies increase their employment of Minnesotans with disabilities. Over the last 15 years, there has been a steady decline in the proportion of Minnesotans with disabilities employed by the state – from 10.1 percent of the state’s workforce in 1999, to just 3.2 percent in 2013. Executive Order 14-14 directs state agencies to increase that level to 7 percent by 2018.
Issued on August 4, the Governor’s Executive Order instructs Minnesota Management and Budget (MMB) and the State Director for Equal Opportunity to develop a model for recruitment and hiring strategies to increase the employment of people with disabilities. In addition, all state agencies are required to develop plans for promoting employment opportunities for Minnesotans with disabilities, and to begin reporting their progress on a quarterly basis. The Order also directs MMB to develop ways to help employees to more easily update their disability status with their employer.
In recent years, Minnesota has fallen behind neighboring states and the federal government in the hiring of individuals with disabilities, according to the Governor’s office. Currently, the states of Wisconsin and Iowa have achieved 5.8 percent, and 4.4 percent levels, respectively. The most recent figures for the federal government show that 5 percent of federal workers are individuals with disabilities. Developed in consultation with disability advocates, Minnesota’s new target of 7 percent will make the state a leader in the region for hiring people with disabilities.
Executive Order 14-14 is the latest initiative enacted by Dayton’s Administration to demonstrate its commitment to help Minnesotans with disabilities live more independently and improve the quality of their lives. Other initiatives include:
- Creating Equitable Policies – The Department of Transportation updated its policies and implemented new trainings to help ensure that all employees with disabilities receive proper accommodations.
- Improving Life and Work Opportunities – Governor Dayton and the Department of Human Services launched Reform 2020, which will make it easier for people to understand and access services and support for Minnesotans with disabilities, while also redesigning and improving services and increasing service coordination and integration.
- Increasing Options and Independence – The Department of Employment and Economic Development’s Vocational Rehabilitation program helps those with disabilities prepare for, find and keep a job, and live as independently as possible. In 2013, the program assisted more than 19,500 people with disabilities.
- Supporting Stable Employment – The Department of Human Services began funding a new initiative to help individuals with disabilities find and maintain employment – helping Minnesotans with disabilities live more independently, and decreasing their need for other state aid.
- Encouraging Diverse Hiring – The Department of Human Rights held a statewide video conference in December to highlight the strategic advantages of hiring people with disabilities.
- Increasing Access to Work Opportunities – The budget signed by Governor Dayton increased funding for State Services for the Blind to help people with disabilities secure and maintain meaningful employment.
More information about Executive Order 14-14 is available on the Governor’s website.
Supervisors tend to talk too much, as every employment lawyer can attest. Why is it necessary to comment on everything and everyone at work?
Recent federal court decisions seem to confirm this. In the space of the past month, supervisor comments alone helped several employees squeak past summary judgment, or even resurrected their claims on appeal. Often evidence of supervisory comments is used to show pretext. It’s a safe bet that in many of these cases, the supervisors had no conscious awareness that their comments could get their employers into trouble.
Consciousness-raising. Conscious awareness of what they are saying is what employment counsel and HR want to instill in their organization’s managerial personnel. Supervisors are thinking about getting the job done; they often aren’t thinking at all about what they are saying. Aside from a reminder to “think before you speak,” and your grandmother’s familiar adage that “if you can’t say anything nice, don’t say anything at all,” what can your organization do to remind supervisors that employees’ ears are always on high alert?
You can start by sharing some stories about the kinds of comments that got other supervisors into trouble. For example:
1. Race discrimination
Us vs. them. Revisiting an African-American operation manager’s race discrimination and retaliation claims, the Second Circuit found pretext evidence in statements by his former supervisor that, with respect to the employee’s ability to discipline his African-American regional managers, “they don’t know how to police each other” and that the regional office “could lighten up a bit.” (Kirkland v Cablevision Systems). The manager was the only African-American area operations manager working for the employer; he had complained multiple times about being singled out for criticism, the last time just a month before he was fired.
You don’t fit in. Citing management comments that an African-American detective “did not fit in” with an elite group of troopers and a white officer would “fit in better” as sufficient to raise an inference of pretext as to the real reason why the Black detective wasn’t assigned to that specialized unit, the Second Circuit vacated summary judgment that had been granted to a public employer (Abrams v Department of Public Safety, State of Connecticut). The detective was rejected despite his supervisor’s recommendation; he was one of only three black detectives in his unit, and for five straight years, all eight detectives selected for assignment to the unit were white.
The veiled comments in the two cases above carried a racial undercurrent that revealed the speakers apparently had an “us vs. them” mentality, which was enough for the appeals court to let a jury consider whether discriminatory treatment occurred. Asking your own supervisors to discuss what they think the comments meant and whether they agree with the court can lead to increased awareness of their own attitudes and behaviors.
2. Sex discrimination
Prison riot. Meanwhile, the Seventh Circuit dismissed a prison counselor’s hostile environment claims based on the regular use of her desk for sex by the night shift – the court didn’t see that obviously offensive practice as related to her gender – but it did find a constant barrage of sexually charged comments directed towards her was egregious enough to reverse summary judgment against her discrimination claims (Orton-Bell v State of Indiana). Her first superintendent harassed her, ogled her, and allegedly told her she couldn’t wear jeans because “her ass looked so good that it would cause a riot.” He got fired, but male employees continued to congregate to watch female employees receive pat-downs, making sexual comments all the while, like they needed a cigarette after watching her get patted down because it was almost like having sex.
Here the constant barrage of comments was worse in the court’s view than sex-on-a-desk. Would your managers agree? Most managers recognize that a continuing stream of harassing commentary is inappropriate. But comments don’t have to be constant to be actionable, as evidenced by the cases below:
Just one comment. Saying she “just didn’t like the idea of two men working together,” the words of a case manager who later became a male hospice nurse’s supervisor, and then terminated him, got her into trouble. This one comment was enough for a district court to deny summary judgment, finding a fact question as to pretext, even though there was ample evidence the employee had been counseled for tardiness, policy violations, and rudeness to coworkers (Lianoz v Hospice of Humboldt).
Or only one week of comments. Coworker comments like “women don’t belong working on cars,” egregiously sexual comments, dirty jokes, and an assistant manager’s remark that “girls do not deserve to work [here] on cars,” even though occurring primarily during only one week, were found severe and pervasive enough by another court to establish a hostile work environment. Multiple incidents of both anti-female comments and sexually charged comments specifically directed at the employee created an inference, said the court, that her gender was the motivating factor for other gender-neutral instances of harassment; this gave the court permission to view gender-neutral instances as part of the hostile environment it (Schmidlin v Uncle Ed’s Oil Shops Inc). To be actionable, misconduct must be recurring, not prolonged. The fact that the employee worked with the worst offending coworker for only one week was irrelevant to the court in this case.
3. Age discrimination
Clearly the courts are very sensitive about sexual comments. But attitudes are changing about age-related comments as well. Moreover, talking about age seems to be really common. In most situations, supervisor comments aren’t the only evidence, but they can be the icing on the cake when it comes to convincing a court that there is evidence of pretext, for example:
Let’s (not) talk about age. In a classic example of an employee whose performance is not an issue until a new supervisor arrives, comments by the new supervisor about various employees like “she’s too old, she should probably just quit,” “she’s too old for that position,” and “I hope they’re not hiring an old lady again” about a recent job opening were sufficient to get to a jury on whether the given reason for the employee’s termination was pretext for age discrimination. Even though there was evidence the fired employee had made an inordinate number of job-related mistakes, the remarks here were made by a decisionmaker, they weren’t stray, and they were neither isolated nor ambiguous (Rittenhouse v Early Warning Services, LLC).
In another case, a supervisor’s age-related demeaning comments to such as “How old are you anyway?” “We’re not as young as we used to be,” “Aren’t you a baby boomer?” and “When are you going to retire anyway?” could plausibly interfere with a reasonable employee’s ability to focus and maintain composure at work. Thus, the employee’s allegations of age harassment were not isolated or trivial but rather demonstrated a pattern of discrimination against her based on her age sufficient to survive a motion to dismiss (Landucci v State Farm Insurance Co).
Especially when you’re demoting someone. Asking an employee about her age, plus comments by the company president that another, older employee needed to “slow down,” were enough that a jury could infer pretext for age discrimination in an employee’s demotion and termination. Rejecting defense arguments that pretext evidence was based only on stray remarks, the court found this too was a jury question. Even if the comments were “stray remarks,” they were made at the meeting during which the employee was demoted, which gave them more weight (Patricia Grenier v Key Floral, Inc).
Or say we don’t want to hire older people. Statements by a direct supervisor that his boss was concerned about getting in trouble for hiring the employee because the company owner did not want him to “hire older people” when offered as circumstantial evidence were not stray remarks. First, they reflected bias towards older workers generally and the employee particularly. Second, the owner’s comment was made by someone “in a position to influence” the employee’s direct supervisor, who was the decisionmaker. The owner’s denial merely confirmed the existence of a genuine issue of material fact. There was evidence of multiple age-related comments, including these, as well as the fact that, at 67, he was the oldest employee and that his job was taken over by someone younger (Suggs v Central Oil of Baton Rouge, LLC).
Or suggest “a more youthful approach.” A supervisor’s comments about a newly created VP position that he was going for “a more youthful approach” supported sending a 65-year-old teaching hospital employee’s nonpromotion claim for age discrimination to a jury. During the search to fill the VP position, for which the employee had applied, the headhunter’s notes referred to the employee as “mid 60’s to Retire.” Just before the hospital hired a 51-year-old candidate for the VP job, the operations manager allegedly said he was “looking for a more youthful approach” (Mullinix v Mount Sinai School of Medicine).
Most of these statements appear to reflect offhand remarks made without thinking. What you want to cultivate among your managers and supervisors, however, is a conscious awareness that words matter, and they are often carefully scrutinized – by employees, by their peers, by their own supervisors, and by the courts. What they say can – and will – be used against your organization.
If all this talk about supervisors talking is too much talking, check out this musical reminder to think before we speak:
(By Joe Jones and Reginald Hall)
You talk about people
That you don’t know
You talk about people
Wherever you go
You just talk
Talk too much