Discriminatory Practice Speaks Louder than Policy 8:31, April 20, 2017

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Discriminatory Practice Speaks Louder than Policy

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To paraphrase Joan Didion, we make assumptions in order to live. Assumptions can be innocuous (believing droplets seen from the inside of an office window mean it’s raining outside) or noxious (believing and spreading rumors without evidence). Assumptions about a worker’s disability, especially assumptions about how it may impact their job, can result in harm to the worker and liability for the employer. A biased assumption articulated in speech can become a discriminatory practice, even if your company has a an otherwise well-considered nondiscrimination policy. No matter how good your policies are, managerial employees need to understand and implement them appropriately.

Discriminatory Remarks

A management or HR employee is generally seen by the courts as representing the employer. There are numerous examples of this, spanning the gamut from a federal religious discrimination case in which a manager stated that the employee was fired for failing to attend devotional meetings, to age discrimination cases in which managers made disparaging remarks about terminated employees’ ages (one of these cases resulted in a $51.5 million jury verdict).

Although employers may try to defend such conduct as “stray remarks,” when the remarks are made by decision-makers, employers are less likely to prevail. Even when the person who made the remark is not a decision-maker, sufficiently discriminatory remarks in certain circumstances may lead to liability (for example, if the employer knew the remarks were made and did not correct the employee).  And employers in one of the world’s largest economies surely know that the California Supreme Court went so far as to severely limit the “stray remarks” defense in its 2010 decision, Reid v. Google, Inc. This means that even discriminatory statements by non-management may count against the employer in establishing liability in California.

In the following case, the United States District Court, District of Columbia ruled that two “explicitly discriminatory” remarks articulated “discriminatory hiring practices,” even though the remarks did not reflect the employer’s policy.

Discrimination in Sleep’s Clothing

Corwyn Hatter applied to work as a bus operator for the Washington Metropolitan Area Transit Authority (WMATA). WMATA offered Hatter the job on the condition that he complete a medical examination. Hatter learned as a result of his medical exam that he needed to schedule a follow-up exam to determine whether he had sleep apnea. On two occasions, a WMATA human resources (HR) representative told Hatter that a diagnosis of sleep apnea would disqualify him from the job. When two tests showed that Hatter did have sleep apnea, Hatter refused to submit the test results to WMATA. WMATA rescinded the job offer.

Hatter believed that WMATA had discriminated against him because of his sleep apnea, a disability. So he sued WMATA for disability discrimination under the Rehabilitation Act of 1973 (the public sector version of the Americans with Disabilities Act, or ADA). WMATA argued that it had rescinded Hatter’s job offer because he failed to submit a required medical certification (the sleep apnea tests), not because he had sleep apnea. WMATA also told the court that sleep apnea does not automatically disqualify a candidate from being a bus driver under the agency’s policy.

The court was unconvinced, especially since HR had told Hatter the opposite—twice. “A reasonable jury,” wrote the court, “could therefore determine that [WMATA’s] stated explanation for not hiring Plaintiff—that he was not hired only because he failed to complete the certification process by submitting the medical results—was merely a pretext for discrimination against [Hatter] due to his disability.” The court observed that Hatter had previously worked as a commercial passenger bus driver and could likely perform the essential functions of the job.

“Especially troubling” to the court were HR’s statements to Hatter:

WMATA’s own human resources staff articulated to [Hatter] an explicitly discriminatory hiring practice for applicants with sleep apnea, and then, after he chose not to proceed with the process because he had been told repeatedly that he would be disqualified, WMATA now attempts to hide behind [Hatter’s] failure to complete the process to assert he was not qualified and cannot establish a discrimination claim. [WMATA], like any employer, cannot evade liability under federal civil rights laws in this way. Such a practice, if proven, would subvert the very purpose of our nation’s civil rights protections, perpetuate the pervasive discrimination against individuals with disabilities that Congress expressly sought to remedy, and would lead to unacceptable results.

The case may now proceed to a jury trial to determine whether WMATA is liable to Hatter for disability discrimination. Hatter v. WMATA.

Essential Job Functions

Beyond maybe looking at WMATA’s policy before making a blanket statement about a disability, the HR representative should have known about her duty to engage in an interactive process with an employee or job candidate with a disability to determine whether they are actually (not theoretically) capable of doing the job.

Sadly, the WMATA HR representative who twice articulated “an explicitly discriminatory hiring practice” apparently based that practice on an assumption that sleep apnea would disqualify Hatter for the bus driver position, without considering whether he could do the essential functions of the job. WMATA took a different tack in court: they tried to establish that Hatter had not been qualified for the job because he had not completed the medical certification process. However, the court noted that the essential functions of the job listed in WMATA’s job posting do not include medical certification. Even if certification were a prerequisite for one or more of the essential job functions, the court observed that WMATA did not show that Hatter could not provide medical certification.

It is not discrimination to terminate employees (or refuse to hire job candidates) who are disabled and can’t do the essential functions of their job, even with reasonable accommodations. This point was demonstrated in a recent Second Circuit Court of Appeals case overturning a $2 million jury verdict in favor of a pharmacist with a disability called “trypanophobia” (fear of needles). In that case, the employer demonstrated that the job function of giving injections was essential to the pharmacist’s job, and that the accommodations he requested (such as hiring additional staff to do the job he couldn’t do) were not reasonable.

However, determining whether a job function is essential takes more than just checking items off a list. As illustrated by a recent EEOC settlement, essential job functions must reflect the actual job duties — even for a straightforward job like cashiering.   

Follow-through & Training

The WMATA opinion did not mention whether the HR representative who made the discriminatory remarks had been trained in how to avoid discriminatory hiring practices. But maybe, if she had, this wouldn’t have happened. Even if she had made the statements, training and effective follow-up could have saved WMATA from prolonged litigation.

For example, a record of effective training could have shown that WMATA took measures to communicate its policy. Perhaps the employer could have averted some or all liability by showing that the employee had acted outside the scope of employment in making the discriminatory remarks. This point could have been further bolstered if the HR representative had faced prompt discipline for the conduct. Nowhere in the court’s opinion was there any indication that this had happened.

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Steve Treagus
Stephen Treagus, JD's, previous practice as an attorney specializing in employment litigation exposed him to the rough-and-tumble world of employment relationships gone awry. Today, this experience informs his articles and courses, helping employers avoid costly litigation and get employment law right. Stephen earned his JD from John F. Kennedy University School of Law and his BA from Sonoma State University.

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