Employment Law Observer

Determining the essential functions of a job can be tricky, especially if there is no information or documentation with which to compare and consider. In this case, the U.S. Court of Appeals for the Tenth Circuit considered job qualifications in the context of essential functions, and ultimately found that the employee failed to demonstrate that he was qualified or could perform the essential functions of his position after failing a required DOT medical certification. As a result, he could not maintain his ADA claim against his former employer. 

A hospital employee was terminated for dishonesty and causing a workplace disruption. She had previously posted comments on her Facebook page alleging that her supervising physician inappropriately touched her and was paying employees for time they did not work. The accused physician saw the posts and notified hospital management. The employee was asked about the posts, and three times denied that she had authored the posts. The hospital investigated the allegations, including the allegations concerning the touchings by the supervisor, and during this time, the employee told her co-workers that she believed the physician had destroyed evidence of the extra pay he had given to the employees. Later, the employee admitted that she had, in fact, authored the Facebook posts and was terminated for dishonesty and causing a workplace disruption.

An applicant sought a position with a retail clothing company that had a "Look Policy," which required employees to dress in clothing that was consistent with the type of clothing sold in the stores. The policy precluded the wearing of caps, though the term was not defined. If, during the interview process, there is an issue about the application of the Look Policy, or if there's a request for a deviation from the policy due to religious practices, the manager is to contact a supervisor or human resources to determine how to proceed.

A cleaning company owned by two white women had a cleaning contract with a city airport. Throughout the period of the contract, the cleaning company’s owners and employees worked with a contract-compliance technician at the airport to arrange for cleaning services. According to the owners of the cleaning company, the technician, an African American male, made discriminatory comments regarding the owners’ gender and race and made the work environment miserable for their employees. When the owners of the cleaning company complained that the airport staff was not treating them well and that the airport was discriminating against the company, the airport terminated the contract. Thereafter, the cleaning company sued the airport and the technician alleging gender and race-based discrimination and a violation of its constitutional rights.

The Tenth Circuit Court of Appeals recently held that an employer did not violate the Family and Medical Leave Act (FMLA) by terminating an employee who failed to return to work after exhausting her leave.

Recently, the United States Court of Appeals for the Tenth Circuit held that an employee’s request for a transfer to a different geographical location in order to have better access to medical treatment was not unreasonable.

A supervisor of released adult offenders suffered from sacroiliac joint dysfunction, a condition causing pain in the joints that limited her ability to walk and forced her to work from home. After surgery, she made a full return to work, but roughly a year and a half later she fell down stairs at work and the symptoms of her condition returned. She had a second surgery and took leave under the Family and Medical Leave Act (FMLA) to recover. She was terminated after her FMLA leave expired.

Two separate individuals filed discrimination charges pursuant to the Americans with Disabilities Act (“ADA”) with the Equal Employment Opportunity Commission (“EEOC”) against an employer alleging discrimination based on a perceived disability after they were not hired following a conditional offer of employment and a medical screening procedure.

A truck driver voluntarily informed his company's human resources manager that he was HIV-positive. Several months later, the driver decided to become a driver-trainer for the company. The company's HR manager expressed some concerns regarding the driver's ability to work as a trainer because of his HIV-positive status. The company and the driver discussed the matter, and ultimately decided that the driver's HIV status would be disclosed to those he trained via an acknowledgement form informing trainees that the driver suffered from HIV. Ultimately, the relationship between the driver and the company deteriorated significantly, and the driver's contract was terminated. The EEOC filed suit against the company on the driver's behalf, raising a number of claims. Included among these was a violation of Section 102(d) of the Americans with Disabilities Act ("ADA"), which governs medical examinations and inquiries. Ultimately, the Tenth Circuit held that Section 102(d) only prohibits the disclosure of confidential information obtained through an authorized medical examination. It does not, the court held, protect information that is voluntarily disclosed by an employee outside of an authorized employment-related medical exam or inquiry. This opinion recognizes an important limitation on Section 102(d), which could otherwise rapidly devolve into a strict-liability provision that creates liability for any disclosure. Such a result would negatively impact the ability of employers and employees to develop creative solutions to difficult situations, like the one presented here. Nevertheless, employers must tread with extreme caution whenever disclosing confidential employee information, as doing so could lead to litigation not only under the ADA, but under state tort laws as well.