Wyatt Employment Law Report

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Court Holds That Requiring an Employee to Undergo Psyhological Counseling May Violate ADA

By Edwin S. Hopson

On August 22, 2012, the U.S. Court of Appeals for the Sixth Circuit in Kroll v. West Lake Ambulance Authority, ___ F.3d ___, Case No. 10-2348, held that requiring an employee to undergo psychological counseling may violate the Americans with Disabilities Act.

The ADA states:

“A covered entity shall not require a medical examinationand shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”

The plaintiff had had an affair with a co-worker and after an incident related to that during with which it was reported that the plaintiff had been screaming into her phone while on an emergency run, her supervisor required her to undergo psychological counseling before returning to work.  She refused and never returned to work.  A suit was filed claiming, among other things, an ADA violation. The district court granted summary judgment dismissing the case and the former employee appealed.

The appellate court in reaching its decision relied heavily on EEOC guidance.  That guidance consists of seven factors:

(1) whether the test is administered by a health care professional;

(2) whether the test is interpreted by a health care professional;

(3) whether the test is designed to reveal an impairment or physical or

mental health;

(4) whether the test is invasive;

(5) whether the test measures an employee’s performance of a task or

measures his/her physiological responses to performing the task;

(6) whether the test normally is given in a medical setting; and,

(7) whether medical equipment is used.

The court found that factors one, two and three were present, and reversed and remanded the case to allow more development of a record as to the remaining factors.

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“But-For” Causation Standard Applies To Claims Under The Americans With Disabilities Act

By Leila G. O’Carra

Since 1995, a plaintiff making an ADA claim in the Sixth Circuit could succeed only by proving that an employer based an adverse decision “solely” on the plaintiff’s disability.  That changed on May 25, 2012, with the Sixth Circuit’s opinion in Lewis v. Humboldt Acquisition Corporation, Inc., Case No. 09-6381, reducing the plaintiff’s burden from “sole factor” to “but-for” causation. 

Plaintiff Susan Lewisworked as a registered nurse for Humboldt Manor Nursing Home (“Humboldt”).  According to Lewis, about a year after Humboldt hired her, she developed a condition that affected her ability to walk and required her occasional use of a wheelchair. Humboldt fired Lewis in March 2006, because, Humboldt alleged, Lewis had an “outburst” at work, yelling and criticizing her supervisors. Lewis claimed that the real reason for the termination was her disability, and she filed suit in the United States District Court for the Western District of Tennessee.

On the plaintiff’s ADA claim, the district court instructed the jury that Lewis could recover only if her disability was the “sole reason” for her termination.  The jury found for the defendant, concluding that Humboldt considered factors other than Lewis’s disability, and Lewis appealed. 

On appeal, Lewis argued that the district court should have instructed the jury to find in her favor if she proved that her disability was a “motivating factor” in Humboldt’s decision.  Under a “motivating factor” analysis, a plaintiff may succeed at trial upon proving that her disability was one factor that the employer considered, even though the employer also had legitimate reasons for firing her.  In contrast, the “sole factor” standard used by the district court required Lewis to prove that her disability was the only reason for Humboldt’s termination decision.  A panel of the Sixth Circuit upheld the district court’s use of the “sole factor” standard, explaining that it was bound by precedent, but invited Lewis to seek rehearing en banc, strongly suggesting that the full Sixth Circuit would reverse the district court’s decision.  Lewis v. Humboldt Acquisition Corporation, Inc., 634 F.3d 879, 881 at n. 4 (6th Cir. 2011) (“Of course, after this panel issues its opinion,Lewis may still move for rehearing en banc…”).  And that is exactly what happened.

Writing for the majority, Judge Sutton explained: “The longer we have stood by [the “sole factor”] standard, the more out of touch it has become with the standards used by our sister circuits.  At this point, no other circuit imports the ‘solely’ test into the ADA.”  Upon rejecting the “sole factor” test, the Court was left with the question of what standard of proof  to apply in ADAcases.  Relying on the reasoning in the United States Supreme Court’s decision in Gross v. FBL Financial Services, 557 U.S. 167 (2009), the Sixth Circuit held that “[t]he ADEA and the ADA bar discrimination ‘because of’ an employee’s age or disability, meaning they prohibit discrimination that is a ‘but-for’ cause of the employer’s adverse decision.”

While the Court unanimously rejected the “solely” standard, seven of the sixteen judges that heard the case would have applied a “motivating factor” standard to ADA claims, rather than the more onerous “but-for” standard endorsed by the majority of the Court.  One of the proponents of the “motivating factor” standard, Judge Stranch, wrote in a footnote that “this case is about the ADA language prior to the Congressional revisions in 2008.  Thus, only the pre-2008 statute is before this Court…[and] any conclusions offered on the current ADA are dicta.” Judge Stranch’s observation may be her attempt to limit the majority’s holding and leave the door open for application of the “motivating factor” standard to the current version of the ADA. 

In Lewis’s wake, employers in the Sixth Circuit must be mindful of the new “but-for” standard of proof, and the potential for an even more plaintiff-friendly “motivating factor” standard, when making decisions regarding litigation and settlement of ADA claims. 

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EEOC: ADA May Be Implicated in Requiring New Hires to Have a High School Diploma

By Edwin S. Hopson

Recently, the U.S. Equal Employment Opportunity Commission (EEOC) issued a “Questions and Answers” piece about informal guidance it had offered on November 11, 2011, about how the Americans with Disabilities Act (ADA) applies to qualification standards for jobs.  Specifically addressed was a typical qualification for new hires at many companies – the high school diploma.  On November 11, the EEOC had opined that:

 “… if an employer adopts a high school diploma requirement for a job, and that requirement “screens out” an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of ‘disability,’ the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.”

 The EEOC went on to state that “[e]ven if the diploma requirement is job related and consistent with business necessity, the employer may still have to determine whether a particular applicant whose learning disability prevents him from meeting it can perform the essential functions of the job, with or without a reasonable accommodation.”

 The letter can be found at:


In the recent “Question and Answer” piece, the EEOC noted that there had been “significant commentary and conjecture” about the informal guidance and attempted to clarify EEOC’s position.  The agency denied that it had made it illegal for companies to require a high school diploma be possessed by a new hire.  However, EEOC stated:  “However, an employer may have to allow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrate qualification for the job in some other way.”

 To review the full “Question and Answer” piece, click on:


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EEOC Announces Fiscal Year 2011 Statistics Showing Record Case Dispositions

By Edwin S. Hopson

On January 24, 2012, the U.S. Equal Employment Opportunity Commission announced that in Fiscal Year 2011, it received a record 99,947 charges of employment discrimination.  During that year it also obtained $455.6 million in relief through its administrative program as well as litigation.  EEOC also announced that, as in Fiscal Year 2010, it resolved more charges than it took in with 112,499 case resolutions.  That is an increase of some 7% over Fiscal Year 2010.  This meant that for the first time in 10 years, the EEOC reduced its case inventory.

 The Fiscal Year 2011 data also indicate:

-5.4 million individuals benefited from changes in employment policies or practices in their workplace during the past fiscal year.

-The EEOC’s mediation program reached record levels, both in the number of resolutions – 9,831 – which is 5% more than in Fisal Year 2010 (9,362), and benefits — $170,053,021– $29 million more than Fiscal Year 2010.

-The Commission filed 300 lawsuits and its litigation efforts resulted in $91 million of relief, representing the third year in a row that the relief obtained was greater than in the preceding fiscal year.

-Some 23 of the lawsuits filed by EEOC involved systemic allegations involving large numbers of persons and an additional 67 had multiple victims (less than 20).

-The Commission also filed 261 “merits” law suits, including direct law legal actions against respondents and interventions in pending private lawsuits alleging violations of the substantive provisions of the statutes it enforces, as well as suits to enforce administrative settlements.

-EEOC’s public outreach and education programs directly reached approximately 540,000 persons.

-In the federal sector, where the EEOC has different enforcement obligations, the Commission resolved a total of 7,672 requests for hearings, securing more than $58 million in relief for parties who requested hearings.  It also resolved 4,510 appeals from final agency determinations.

Charges alleging retaliation under all the statutes the EEOC enforces were the most numerous at 37,334 charges received, or 37% of all charges.  EEOC also announced that it received 35,395 charges alleging  involving claims of race discrimination; this comprised some 35% of all charges received. While the numbers race discrimination charges declined from Fiscal Year 2010, charges with the three other most frequently-cited allegations increased:

-Sex discrimination–28,534

-Disability discrimination–25,742

-Age discrimination—23,465

EEOC’s enforcement of the Americans with Disabilities Act of 1990, as amended, produced the highest increase in monetary relief among all of the statutes it administers: the administrative relief obtained for ADA charges increased by some 36% to $103.4 million compared to $76.1 million in Fiscal Year 2010.

In ADA cases, back impairments were the most frequently cited impairment, followed by other orthopedic impairments, depression and diabetes.

For the first full fiscal year of enforcement, EEOC received 245 charges under the Genetic Information Nondiscrimination Act, which prohibits discrimination on the basis of genetic information, including family medical history. Thus far, none of the GINA charges has proceeded to litigation.

The complete Fiscal Year 2011 enforcement and litigation statistics are available on the EEOC’s website at http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm.

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Supreme Court Bars Suits Under the Discrimination Laws Brought on Behalf of Persons Considered “Ministers”

By Edwin S. Hopson

In a case decided January 11, 2012, the U.S. Supreme Court unanimously held that a teacher at a Lutheran School could not maintain an action under the employment discrimination laws arising out of her discharge from employment.  Chief Justice John Roberts, writing for the court, in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, et al., 565 U.S. ___, No. 10-553 (2012), stated that the “ministerial” exception to the application of such laws was grounded in the Establishment and Free Exercise Clauses of the First Amendment and should be applied to this teacher because she was a minister within the meaning of the “ministerial” exception.  This was so he reasoned because she had been “called”, trained, and functioned as a minister for at least part of the school day.  It was also noted that she had claimed a special housing allowance on her taxes based on her status as a minister. 

In reversing the U.S. Court of Appeals for the Sixth Circuit, the Supreme Court noted that the Sixth Circuit had given too much weight to the teacher’s secular duties during the school day and the fact that she was performing many of the same duties as secular teachers in the same school who were not covered by the “ministerial” exception.

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OFCCP Announces Proposed Revisions to Section 503 Regs Regarding Persons with a Disability

By Edwin S. Hopson

On December 8, 2011, the U.S. Department of Labor announced that the Office of Federal Contract Compliance Programs (OFCCP) is proposing a new rule that would require federal contractors and subcontractors to set a hiring goal of having 7% of their workforce be people with disabilities, among other requirements. OFCCP is inviting public comment on its proposal.

OFCCP’s proposed rule would substantially increase the affirmative action requirements contained in Section 503 of the Rehabilitation Act of 1973 which obligates federal contractors and subcontractors to ensure equal employment opportunities for qualified workers with disabilities.  For many years, Section 503 has only required that federal contractors make a “good faith effort” to recruit and hire persons with a disability.

The proposed regulations also make significant, substantive changes to a contractor’s responsibilities and the process through which applicants are invited to voluntarily self-identify as individuals with disabilities protected by section 503 during the hiring process.  It also adds a new requirement that contractors must annually survey employees in order to provide an opportunity for each employee who is, or subsequently becomes, an individual with a disability to voluntarily and anonymously self-identify. 

With these changes, the contractor’s affirmative action programs would be required to contain the following elements: (1) An equal employment opportunity policy statement; (2) a comprehensive annual review of personnel processes; (3) a review of physical and mental job qualifications; (4) a statement that the contractor is committed to making reasonable accommodations for persons with physical and mental disabilities; (5) a statement that the contractor is committed to ensuring a harassment free workplace for individuals with disabilities; (6) external dissemination of the contractor’s affirmative action policy, as well as outreach and recruitment efforts; (7) internal dissemination of the contractor’s affirmative action policy to all of its employees; (8) development and maintenance of an audit and reporting system designed to evaluate affirmative action programs; and (9) training regarding the implementation of the affirmative action program for all personnel involved in employment related activities, such as the conduct of recruitment, screening, selection, and discipline of employees.

The proposed revisions can be found at: 


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Court of Appeals Refuses to Enforce Arbitration Clause

By George J. Miller

In the recent case of Hergenreder v. Bickford Senior Living Group, No. 10-1474, the U.S. Court of Appeals for the Sixth Circuit held that an employee could not be compelled to arbitrate an ADA claim against her employer when, under Michigan contract law, she had not contractually agreed to do so.  The company’s position was that she was bound to arbitrate the claim under the provisions in its Dispute Resolutions Procedure (“DRP”). However, there was no evidence that the employee had signed the DRP and little evidence she had ever seen it. The best the company could do was offer evidence that the DRP was distributed to all employees.  The employee denied that she had received it.  While the company’s employee handbook referred employees to the DRP “for details,” the handbook contained a disclaimer that it was not a contract, and everyone agreed it was not a contract. So the bottom line appears to be that employers in states in the Sixth Circuit (Michigan, Ohio, Kentucky and Tennessee) who want to force employees to arbitrate employment disputes and waive their right to a jury trial need to have employees sign a document which forms a valid contract under the law of the applicable state.


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