Employment & Labor Insider

Win No. 1: Weakest reasonable accommodation case ever?

Probably not, alas, but it was still pretty darned weak. An employee of U.S. Customs and Border Patrol (we’ll call her “Paulina”) claimed that the CBP violated the Rehabilitation Act of 1973. (The Rehab Act is the equivalent of the Americans with Disabilities Act for the federal government, federal contractors, and some employers who receive federal funds.)

According to Paulina, the CBP didn’t provide the reasonable accommodation she wanted, which would not have been an undue hardship, and the CBP dragged its feet with the interactive process. Judge Jesus Bernal granted summary judgment to the CBP.

You know a plaintiff has a bad case when she can't get to a jury -- in California.

"That's not funny."

Paulina had a hearing impairment, with associated tinnitus and disturbances caused by noise.

She worked for several years in CBP’s offices in Indianapolis and, as a reasonable accommodation for her hearing issues, the CBP allowed her to have a private office.

Then she sought to relocate to California for personal reasons unrelated to her disability. She was approved for a private office in California . . . but the private offices there did not have visual fire alarms. When the CBP got an estimate on installing one, they were told it would entail ripping up some walls and would cost $15,000-$30,000. Oh, and possibly stir up asbestos in the building, which would be a whole ‘nother can of worms. And expense.

Therefore, before she relocated, the CBP told Paulina that they could not give her a private office in California after all. But they offered her two alternatives:

• She could be stationed in a cubicle where a “common” fire alarm would be in her line of sight. The CBP had had the cubicle tested professionally, and found that the cubicle was no noisier than, and possibly quieter than, the private office. (My guess is that the cubicle area was unoccupied, or only sparsely occupied.)
• OR she could work from home full-time.

Paulina moved to California in November 2018, and continued talking with the CBP about accommodations. In July 2019, the CBP told her definitively that it could not provide her with a private office but that she could choose from the two accommodations described above.

Then, in early 2020, everybody started working from home anyway because of COVID – including Paulina.

"Remember ME???????"

Judge Bernal gave short shrift to Paulina’s claims in his decision issued last week. First, Paulina claimed that there was a $199 desktop alerting device that the CBP could have used instead of ripping up the office for $15-30K and releasing asbestos into the air.

The problem was that Paulina presented no evidence that the $199 device would have complied with “building, [General Services Administration], and fire marshal” requirements. And she didn’t dispute the CBP’s cost figure to have things done right. Judge Bernal found that, under the circumstances, providing a private office would have been an “undue hardship” for the CBP.

Second, Judge Bernal found that the alternative accommodations proposed by the CBP were reasonable and effective. I've explained the deal with the cubicle. And full-time work from home?

"May I have that accommodation if you don't want it? PUH-LEEEEEEZE?"

Paulina had a creative argument about the telecommuting accommodation. She said telecommuting wasn’t really an “accommodation” because everybody was allowed to do it.

Judge Bernal correctly said that an accommodation is not invalid just because it is also available to people without disabilities. The only issue is whether it would have been an effective accommodation. (The COVID teleworking arrangement was in effect until 2022, and Paulina worked from home, apparently without any problems, that entire time.)

Lesson No. 1: It’s hard for employers – especially large employers, like the federal government – to prevail on an “undue hardship” defense. But the CBP did its homework and managed it. Nice job, you guys!

Lesson No. 2: Even if it would not be an undue hardship, the employer does not necessarily have to agree to the accommodation that the employee wants. The employer is free to choose an accommodation that is cheaper, or easier, or less disruptive to co-workers, as long as that accommodation will still be effective (in other words, as long as it will let the employee with the disability perform the essential functions of the job).

Win No. 2: ADA “medical examination”? No.

A physician (we’ll call him “Dr. Geoff”) at a university medical center was accused by some female residents of inappropriate touching and making sexist comments. The employer conducted an investigation, and found that the complaints did not have merit. But it did find that Dr. Geoff had leadership and management style issues, and would benefit from professional coaching.

The coach (we'll call him "Dr. Freud") was a licensed psychologist, and his organization provided what sound like employee assistance services in addition to management coaching.

Dr. Geoff refused to go through with the coaching, contending that it was a “medical examination” within the meaning of the ADA. (It violates the ADA for an employer to require any employee to undergo a medical examination unless “job-related and consistent with business necessity.”)

"Tell me more about your management style . . ."

The medical center insisted that this was professional coaching and not a medical examination. Dr. Geoff continued to resist, and so the medical center offered him an alternative (but with another psychologist). Dr. Geoff wouldn’t agree to the alternative, either, and he was informed that his employment would be terminated two months hence.

During the two-month period before his last day, Dr. Geoff went to two sessions with Dr. Freud, who asked how he was doing, whether he was sleeping well, whether he was getting exercise, and the like. Dr. Geoff contended that this was an ADA “medical examination.”

A federal judge in Georgia found in favor of the medical center and said that these were coaching sessions and not medical examinations. This week, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit unanimously agreed.

The panel found that, generally, leadership coaching is not a medical examination. And asking an employee how he was doing after a traumatic event (such as a termination), or about his sleep, exercise, or diet, does not transform the conversation into one.

Also, the mere fact that Dr. Freud was a licensed psychologist was not enough to establish that the coaching was really a medical examination. It wouldn't surprise me to learn that a lot of leadership coaches have backgrounds in psychology.

Lesson No. 3: There should be no ADA issue with sending employees for coaching, even if the “coach” has a psychological background. However, it might be prudent for employers to have alternatives that are unequivocally non-medical (such as a coach with a business/Human Resources background), who can be offered if the employee expresses an ADA concern.