BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE
An employer was recently caught “crying wolf” with regard to a claim of undue hardship. The result? The employer will have to prove in a jury trial that its assertion was not a pretext for disability discrimination in violation of the ADA.
Accommodation basics. An employer must provide an ADA accommodation to a disabled employee if the requested (or an alternative) accommodation is reasonable and effective. Reasonable means that, on its face, the accommodation is plausible and feasible. Effective means the accommodation will enable the individual to perform the essential functions of his/her position.
If these two criteria are met, then the employer’s only defense to providing the accommodation is that it will impose an undue hardship on the employer’s business. Undue hardship is defined as “significant difficulty or expense” in relation to the size of the employer, the resources available, and the nature of the operation. 42 U.S.C. § 12111 (10); 29 C.F.R. § 1630.2(p)(1) and (2).
The case. Jana Churchwell worked for the City of Concord, North Carolina, as a project engineer from 2001 until her termination in July 2015. (It takes lawsuits quite a while to wind their way through the court system!) Throughout her employment Jana suffered from chronic autoimmune urticaria and in 2013 was also diagnosed with IBS and chronic migraine headaches. She took intermittent and then continuous FMLA leave due to her IBS and migraines.
In June 2015 the City gave Jana notice that she was about to exhaust her FMLA entitlement and provided her with information about requesting an ADA accommodation. On June 16 Jana requested accommodations consisting of leaving the office or working from home when symptoms occurred, leaving for medical appointments, and avoiding extreme temperatures. However, her doctor stated that no accommodation would enable Jana to work when she was suffering from a migraine and that she might need leave of 1 day per every 2 weeks or less. The next day she also requested medical leave for 30 days as an accommodation, which would have provided time off until July 17.
The City granted the various work-related accommodations but denied Jana’s leave request and stated she must return to work by June 26. Jana’s supervisor denied the request because the Engineering Department had 3.5 full time engineers (Jana was one), 48 active projects, and “[l]osing one full-time engineer staff person would put [the Department’s] projects even further behind schedule.” Jana responded she needed more time and did not return to work. The City terminated her on July 6 for violation of the City’s absence without leave policy.
What’s wrong with this picture? So far, it sounds like the City made a valid undue hardship argument – granting Jana more leave would result in significant difficulty in operating the Engineering Department and jeopardize its productivity. But certain key facts doomed this argument: The City did not advertise Jana’s position until August 2015, well after Jana’s requested leave period; and Jana’s replacement was not hired until early 2017 – so the Department functioned with only 2.5 engineers for about 1-1/2 years. Finally, with changes in treatment Jana would have been able to return to work at the end of the requested 30-day leave (which was, after all, only about 10 days from the date of her termination) with the other accommodations which the City had granted.
On these facts, the court ruled that a jury could conclude the City’s undue hardship argument was a pretext for disability discrimination. It denied the City’s request for summary judgment. Now the fate of both Jana and the City is in the hands of a jury.
Churchwell v. City of Concord (M.D.N.C. June 11, 2018).
Pings for employers.
- If you have a valid undue hardship reason for denying an accommodation, be sure your subsequent actions
support that argument. In the Churchwell case, the City articulated a very good argument – but then lived
with the alleged undue hardship for months and months after Jana could have returned to work. This clearly
undercut the City’s position and gave Jana ammunition to argue pretext.
- An undue hardship defense is difficult to establish. Monetary consideration alone will rarely win the day.
Rather, it takes a showing of significant operational difficulty or expense.
- Keep records of your analysis and the factors considered. According to the EEOC, generalized conclusions will
not suffice to support a claim of undue hardship. Instead, undue hardship must be based on an individualized
assessment of current circumstances that show that a specific reasonable accommodation would cause
significant difficulty or expense.
- If a specific accommodation will cause an undue hardship, don’t stop there! Be sure to engage further in the
interactive process to see if there is an alternative that will be reasonable and effective before closing the door
on the employee.
- For more information, including the types of factors you should consider to develop an undue hardship argument,
check out the EEOC’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA
Matrix can help!
Matrix’s ADA Advantage accommodations management system and our dedicated ADA team help employers maneuver through the accommodation process. We will initiate an ADA claim for your employee, conduct the medical intake and analysis if needed, assist in identifying reasonable accommodations, document the process, and more. Contact Matrix at firstname.lastname@example.org to learn more about these services.