Two Discrimination Cases Address Unique and Common Situations

In a case before the United States Court of Appeals for the Sixth Circuit, the Sixth Circuit ruled that the Americans with Disabilities Act ("ADA") does not require accommodation of an employee based upon that employee’s "association" with the person who has the disability. Overley v. Covenant Transport, Inc., 6th Cir. (April 27, 2006). Plaintiff, Sharon Overley, claimed that the company fired her after she told her supervisor that she could not work on a certain Saturday because of obligations to her daughter and she had not arranged for a substitute at work. Overley also claimed that her termination violated the Family Medical Leave Act as she claimed that the primary purpose of her missing work that day was to meet with the new trustee of her daughter’s trust that was established as a result of her daughter’s own injury that created her disability.

Section 1211(b)(4) of the ADA forbids discrimination against an employee "because of a known disability of an individual with whom the qualified individual is known to have a relationship or association." However, the ADA does not mandate reasonable accommodation for an employee who has the relationship with the disabled individual. The Sixth Circuit ruled that the ADA did not require the company to accommodate Ms. Overlay’s request to have time off to attend to the meeting with the trustee of her daughter’s trust. The Court differentiated between a claim brought by a disabled individual seeking accommodation and indicated that the employer was not required to reasonably accommodate an employee based upon her relationship with the disabled person. In this case, Overley’s inability to meet the attendance requirements of her job and her decision not to come to work in order to attend to the needs of her daughter was not protected. The Court determined that the employer did not base its decision on the belief that Overley would have to miss work to care for her daughter but because of her record of declining shifts and the absence on the Saturday in question.

As it related to the FMLA allegations, the Court ruled that the FMLA does not provide relief for every family emergency and that there was not a showing that Overley was needed to care for her daughter or that her activity constituted FMLA qualifying care.

In another disability decision issued by the Eighth Circuit Court of Appeals, that Court ruled that under Missouri law an employee was not discriminated against on the basis of his age and disability when he was terminated for violation of the company’s absenteeism policy. The employee, Schierhoff, was terminated by Glaxo Smith Klein Consumer Healthcare after four (4) years of employment for excessive absenteeism. Schierhoff had taken twelve (12) weeks of leave under the Family Medical Leave Act in both 2000 and 2001, plus he was absent another 76 days. The records also showed that between June of 2000 and March of 2002, he was absent almost forty percent (40%) of the time. Schierhoff did not dispute that he was frequently absent but claimed that the reason for his discharge was his age and disability discrimination violation of the Missouri Human Rights Act. Schierhoff cited as evidence the statement made by his supervisor that he "was old and worn out" and asked "why he did not quit." Schierhoff also claimed that he had received positive performance evaluations and the Company’s failure to warn him in those evaluations of his attendance record precluded it from terminating him for absenteeism.

The Eighth Circuit ruled that the statement made by the supervisor was irrelevant since he was not a decision maker in the termination and that he only gathered the attendance records for the Human Resources office. The Court concluded that Schierhoff failed to establish a prima facie case of discrimination citing Schierhoff’s record of excessive absenteeism contrary to the established policy. Furthermore, the absence of any reference to his attendance in Schierhoff’s performance evaluations did not contradict the Company’s right to terminate him for excessive absences as defined by the policy.

Attendance policies often become difficult to enforce if the offending employee is claiming a protected disability or leave entitlement under the FMLA. Employers should exercise caution and consistency in disciplining employees with a known disability. In addition, employees with excessive absenteeism beyond the protected leave under the FMLA will find themselves in a difficult situation trying to defend their record if the absenteeism for non-FMLA reasons is clearly documented and contrary to existing policy.