EEOC Issues Guidance Clarifying Concepts of Reasonable Accommodation and Undue Hardship Under the ADA
On March 1, 1999, the EEOC issued long awaited guidelines to clarify the rights and responsibilities of employers and individuals with disabilities under Title I of the Americans with Disabilities Act ("ADA"). Whether the EEOC's Guidance successfully clarifies "reasonable accommodation" and "undue hardship" is debatable. The EEOC Guidance does, however, provide employers with the EEOC's view on employers' duty to provide reasonable accommodations to individuals with disabilities. It makes the following points:
No Magic Words are Required to Request an Accommodation
To request a reasonable accommodation, an individual need not mention the ADA or use the term "reasonable accommodation." The employer's obligation arises when the individual informs the employer that he or she is experiencing difficulty in some aspect of the job due to a medical condition. Accommodation requests need not be in writing and may come through the employee's family member, friend or health professional.
An Individual Need Not Specify the Precise Accommodation Required, Nor Must the Employer Provide the Specific Accommodation Requested
The EEOC Guidance stresses the importance of an interactive process to determine what accommodation will allow an individual with a disability to perform the essential functions of the job. The employee is not required to specify the precise accommodation needed, but must describe the barriers that prevent performance. The fact that an employee requests a specific accommodation does not obligate the employer to provide that accommodation. The employer is required to provide an accommodation that effectively alleviates the workplace barrier, but may choose the least costly or disruptive accommodation.
The Duty to Accommodate Extends to Benefits and Privileges of Employment
The ADA also requires employers to provide reasonable accommodations so that disabled employees can enjoy all benefits and privileges of employment including accommodations necessary to allow disabled employees to attend work related social functions and training sessions, to obtain information, and to take advantage of other services that are available to similarly-situated employees without disabilities. The duty to accommodate applies even where the work related benefits and privileges are offered away from the employer's facility except where providing the accommodation poses an undue hardship.
Reasonable Accommodations Can Include Modification of Workplace Policies
The Guidance states that a policy requiring termination of employees after a specified period of leave must be modified where an individual with a disability requires leave beyond the policy maximum unless granting such a leave would pose an undue hardship. The Guidance emphasizes that employers should never summarily conclude that a particular accommodation is not feasible because it is inconvenient or inconsistent with employer policies.
Reassignment to a Vacant Position is the Accommodation of Last Resort
Despite conflicting case law on the point, the EEOC's Guidance opines that where an individual with a disability is unable to perform the essential functions of his or her job, even with accommodations, an employer must reassign the employee to another open position that the employee can perform, with or without reasonable accommodation. The obligation includes reassignment to other facilities and to positions that will become vacant within a reasonable amount of time. The EEOC Guidance states that the disabled employee need not be the best qualified individual for the reassigned position. Meeting minimum qualifications is sufficient to entitle the disabled employee to the position regardless of whether other employees are more qualified. The employer is not required, however, to train or assist the employee to become qualified for the new position unless such training would normally be provided to other candidates without disabilities. Neither is the employer required to reassign an employee to an open position that would constitute a promotion. The disabled employee may be required to compete for any open job that would be a promotion.
The Cost of an Accommodation Can Be an Undue Hardship
Employers are not required to provide accommodations that force them to endure undue hardships. The undue hardship determination may not, however, be based on a comparison of the benefit to the employee to the cost of the accommodation. Undue hardship depends on the employer's resources, not on the individual's salary, position, or status. Employers must also consider any potential outside sources for funding in analyzing undue hardship.
The Disruption Created by a Particular Accommodation Can Be an Undue Hardship
Accommodations posing significant difficulty for reasons unrelated to cost may pose an undue hardship. Factors considered include the type of operation of the employer, the structure and functions of the workforce, and the impact of the accommodation on the operation of the facility. If a proposed accommodation prevents other employees from doing their jobs, the resulting disruption may constitute an undue hardship.
An Accommodation May Not Pose an Undue Hardship Because It Requires the Employer to Violate a Collective Bargaining Agreement
Courts interpreting the ADA have held that accommodations that require the employer to violate the seniority provisions of a collective bargaining agreement constitute an undue hardship. The EEOC Guidance expresses a contrary view, emphasizing the need to make such determinations on a case-by-case basis. The Guidance explains that the employer and union are required to negotiate in good faith to achieve a variance to the collective bargaining agreement that would allow the accommodation. Whether a variance will cause undue hardship is determined by examining the duration and severity of any adverse effects caused by the variance and the number of employees whose employment opportunities would be affected by the variance.
The EEOC Guidance does not have the force of law, and some sections appear to conflict with decided cases. The Guidance does reflect, however, the standards that the EEOC will utilize when judging failure to accommodate claims. For this reason, it is important to keep the EEOC's opinions in mind when making employment decisions.
Pending Legislation Would Dramatically Alter the California Employment Law Landscape
With a Democratic governor and a large Democratic majority in the legislature, California employers would be wise to prepare for significant changes in the legal landscape. Within the first three months of this term, a number of important bills have already been introduced. Some of the most important ones are these:
- AB 858 (Kuehl, D-Encino) would prohibit mandatory arbitration in standardized employment agreements. Specifically, the bill would prohibit employers from requesting or requiring employees to waive statutory, constitutional, or common law rights in order to become or remain employed. There is a question as to whether or not the proposed restriction would be preempted by federal law (the Federal Arbitration Act), but the intent of Assembly-woman Kuehl is to write the bill to avoid that result. There is likely to be considerable debate over this bill, but it is strongly supported by plaintiff and consumer attorneys.
- SB 26 (Escutia, D-Montebello) will amend the Fair Employment and Housing Act to expand the reach of the prohibition against age discrimination. Designed to overturn a California Supreme Court decision to the contrary, the bill would make it illegal to make adverse employment decisions based on salary or other such considerations if there is an adverse impact on older workers. An identical bill was passed by the legislature in 1998, but was vetoed by Governor Wilson. Governor Davis is expected to sign this bill when it passes.
- AB 60 (Knox, D-Los Angeles) will reinstate the eight-hour day overtime obligation. For most industries in California, the law was changed effective January 1, 1998, to eliminate the requirement to pay an overtime premium unless an employee worked more than forty hours within a workweek. Governor Davis has declared his intention to reverse this change, and reinstate the requirement that non-exempt employees be paid time-and-one-half whenever they work more than eight hours in a workday except where employees vote for an alternative work schedule. The bill has passed from the Assembly Labor and Employment Committee and is now in the Appropriations Committee.
- AB 109 (Knox, D-Los Angeles) will require employers to permit employees to use at least one-half of their sick leave to care for the illness of a child, spouse, or parent. This bill was passed last year and vetoed by Governor Wilson. It is currently in the Assembly Labor and Employment Committee and is expected to pass easily this time around.
- AB 118 (Hayden, D-Los Angeles) will expand the California Family Rights Act to permit an employee to take family care leave (up to 12 workweeks per year, unpaid) to care for someone who (1) depends on the employee for immediate care and support, (2) has had a relationship with the employee for at least one year, (3) shares a common residence with the employee, and (4) has a serious health condition. This bill also is expected to pass.
- SB 150 (Solis, D-El Monte) will consolidate into one agency five of California's employment agencies, including the Department of Industrial Relations, the Department of Fair Employment and Housing, the Fair Employment and Housing Commission, the Employment Development Department, and the Public Employment Relations Board. As currently written, the bill would not encompass either Cal-OSHA or the Workers' Compensation Appeals Board. This new mega-agency would be under the supervision of a Secretary of Labor appointed by the governor, subject to confirmation by the Senate. No opposition has been registered to the bill.
Because of the Democratic governor and large Democratic majority that now exists, contrary to the past 16 years, when any of these bills passes the legislature, it is expected to be signed promptly into law by the governor. Employers wishing to assert any influence on these bills should express their view to the legislature right away. Information about these and other bills can be found at http://www.leginfo.ca.gov/
Recent Federal Case Refuses to Apply Regulations Requiring Employer Notice and Designation of FMLA-Qualifying Leave
Federal regulations interpreting the Family and Medical Leave Act ("FMLA") require an employer to inform an employee that a leave of absence will count against his or her 12-week maximum leave limit. According to the regulations, if the employer fails to notify the employee, that employee will receive all of the benefits of FMLA, but the time off will not count toward his or her FMLA leave entitlement. A federal court recently ruled, however, that the regulations exceed the scope of the FMLA, holding that the FMLA entitles an employee only to a maximum 12-week leave of absence, even if the employer fails to provide notice to the employee.
In the district court action, an employee who had already taken 13 weeks leave of absence sought to take an additional 12 weeks of unpaid leave. Her argument relied upon the employer's failure to designate the initial absence as FMLA leave. The court ruled for the employer, finding that it had more than complied with the FMLA by providing the initial 13-week leave even though it had not provided the notice required by FMLA regulations. The court concluded that nothing in the FMLA statute authorized additional leave for an employee because the employer failed to provide prior notice. The regulations, therefore, exceeded the scope of the statute by placing an additional obligation on an employer.
This District Court decision is now on appeal and does not currently have any binding effect on California employers. Nonetheless, this case is one of a few recent cases rejecting sections of the regulations interpreting the FMLA. While the notice regulation is under scrutiny, employers are encouraged not to alter current practice of providing notice to the employee before a FMLA-qualifying leave begins. Look for an update on this issue in a later ELU.
Cox v. Autozone, Inc., 990 F.Supp. 1369 (M.D. Ala. 1998).
Organized Labor Launches Campaign for Pay Equity Legislation
According to the AFL-CIO's recent analysis of government statistics, women and minorities are paid less than their white male counterparts in the same or comparable jobs. The analysis revealed that in some states women earn less than 70 percent of the amount earned by their male counterparts. Moreover, both women and men working in jobs where 70 percent of the workers are female are paid significantly less than those working in comparable jobs.
Seeking to address their inequities, in February the AFL-CIO announced a nationwide effort to win enactment of new "pay equity" laws. The goal is to legislate not only "equal pay" for "equal jobs" but also "equal pay" for jobs that are equivalent in required skills, effort, responsibility, and working conditions.
Twenty-two states are now in the process of considering equal pay legislation. Although approaches to the issue vary state-by-state, the AFL-CIO hopes that states will enact legislation patterned after proposed "model" legislation that would:
- Prohibit pay differentials between men and women and between minority and non-minority workers who are in jobs that are "equal" within the meaning of the federal Equal Pay Act or equivalent in their overall composite of skills, effort, responsibility and working conditions, except where differentials are based on bona fide seniority, merit, or piece rate systems, or other non-discriminatory factors;
- Require employers periodically to make a written disclosure to each employee, informing the employee of the job title, wage rate, and how the wage is calculated;
- Bar employers from retaliating against an employee who has opposed an unlawful pay practice or inquired about or discussed wages with others;
- Require employers to maintain wage records and file periodic reports with appropriate state agencies;
- Provide for administrative and judicial enforcement of the legislation, and authorize back pay, compensatory, and punitive damages, attorneys' fees, and injunctions for violations.
While California is not currently considering any such legislation, California companies that ignore this movement do so at their peril given Governor Davis' ties to organized labor.
California Court Adopts Affirmative Defense to Liability for Sexual Harassment
Last year the United States Supreme Court published the twin decisions of Burlington Industries Inc. v. Ellerth and Faragher v. City of Boca Raton holding that where an employer is subject to liability for hostile environment sexual harassment by a supervisor, the employer may assert an affirmative defense to liability where the court finds the following:
- that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and
- that the complaining employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.
This affirmative defense does not apply to quid pro quo harassment where the employee suffers a "tangible employment action."
Because this affirmative defense was established under Title VII, California employers have been waiting to learn whether this defense would also apply under California's Fair Employment and Housing Act. On April 15, 1999, United States District Court Judge Martin J. Jenkins, answered that question in the affirmative by relying on the Ellerth/Faragher affirmative defense to strike down a FEHA claim for sexual harassment in the Northern District of California.
In Kohler v. Inter-Tel Technologies, plaintiff worked for Inter-Tel Technologies for only four months before resigning. A month later, she filed a claim for sexual harassment with the EEOC, alleging that her supervisor had sexually harassed her by phoning her at home, asking her out for a drink, making suggestive comments and telling her that he found her attractive.
Kohler never reported the alleged harassment and gave no indication in her letter of resignation or exit interview that she had been harassed. When Inter-Tel learned of the EEOC complaint, Inter-Tel wrote to Kohler, telling her that it was investigating her complaint, stating that Inter-Tel "sincerely hopes that, since we are fully addressing your complaint, you will return to your job at InterTel on the same terms and conditions." Inter-Tel promised Kohler that if she returned she would receive reimbursement for any lost pay and have no interaction with her prior supervisor. Kohler did not respond to several attempted contacts by Inter-Tel or an independent investigator.
Inter-Tel conducted its investigation anyway, interviewing six employees who worked with the supervisor in question. Even though Inter-Tel concluded that there was no violation of its sexual harassment policy, the company reviewed its policy with the supervisor in question, reprimanded him for sending an inappropriate voicemail to several employees and gave all employees mandatory sexual harassment training.
Kohler argued that the differences between Title VII and the Fair Employment and Housing Act prevented the Court from applying the Ellerth/Faragher affirmative defense to her FEHA claim. Unlike Title VII, the FEHA holds California employers strictly liable for sexual harassment committed by supervisors, and does not require employees to demonstrate that they have suffered a tangible employment action. The Kohler Court dismissed Kohler's arguments, observing that the holdings of Ellerth and Faragher comported with the legislative policy supporting the FEHA:
Applying the Ellerth/Faragher affirmative defense, the Kohler Court found that Inter-Tel had "exercised reasonable care to prevent and correct promptly any sexually harassing behavior." Inter-Tel had a comprehensive sexual harassment policy that Kohler knew of and understood. Moreover, Inter-Tel had a multi-level complaint procedure, and Kohler believed that the people with whom she could have filed her complaint were fair and honest people with whom she felt comfortable. And finally, once Inter-Tel learned of her complaint, it took prompt action to correct it by hiring an independent third party investigator.
The Court also found that Kohler "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer." Rather than alerting the company to the alleged harassment, Kohler remained silent, retained an attorney, quit her position and found alternative employment. The Court held, "Not only did plaintiff fail to avail herself of defendant's policy, but once the defendant began an investigation . . . she refused to cooperate in the investigation. Such conduct bars plaintiff's harassment complaint."
We do not yet know whether the Kohler decision will become published precedent in California. Even in its current unpublished form, however, Kohler sends a clear message to employers about the importance of having a well conceived, well published policy prohibiting sexual harassment, and a prompt and thorough complaint investigation procedure to respond to harassment complaints. Where these pieces are in place, California employees who do not give their employers a chance to remedy hostile environment sexual harassment may never get their day in court.