EEOC-Initiated Litigation - 2022 Edition

© 2022 Seyfarth Shaw LLP EEOC-Initiated Litigation: 2022 Edition | 31 essential functions of a job. In that case, the employer objected to a Report & Recommendation of the Magistrate Judge who decided the parties’ competing motions for summary judgment in the EEOC’s favor. At issue was the Magistrate’s conclusion that the employer’s failure to accommodate the charging party by allowing her to use a non-revolving door to enter the workplace due to her claustrophobia amounted to a denial of reasonable accommodation. 213 The employer argued that the charging party’s physical letter did not state whether the charging party’s condition affected her ability to perform her job or for how long she would need an accommodation, and that it needed that information before it could grant the accommodation request. 214 The Magistrate held that employers have two separate reasonable accommodation requirements. They must accommodate employees who need such an accommodation to perform the essential functions of their job, but they must also have an independent duty to make their facilities "readily accessible to and usable by individuals with disabilities.” 215 The District Court agreed with the Magistrate’s reading of the statute, finding that “[t]he statute expressly states that employees are obligated to accommodate employees by making existing facilities used by employees readily accessible to and usable by individuals with disabilities,” and that the text “gives no indication that requests like [charging party’s] must facilitate the essential functions of one's position to trigger the employer's obligation . 216 Because the statutory text was plain, the District Court held that its “sole function” was to “enforce it according to its terms.” 217 As a matter of first impression in the Eleventh Circuit, therefore, the District Court held that a qualified disabled employee can state a claim for denial of reasonable accommodation under the provision of the ADA that requires employers to make their facilities accessible to persons with disabilities without showing that the accommodation was necessary for the performance of their job functions: "there may be circumstances in which employers are obligated to provide reasonable accommodations to their employees even though the accommodation is not tied to an essential function of the employee's job.” 218 Most reasonable accommodation cases, however, still turn on a qualified individual’s ability to perform the essential functions of a job. For example, in EEOC v. Wal-Mart Stores East LP , 219 the EEOC alleged that an employee with Down Syndrome was fired on account of her disability after she was not able to manage a change to her regular schedule. The employer argued that her termination was because of attendance issues, and that she could not be considered a qualified individual with a disability under the ADA because she was not able to perform the essential functions of her job; namely, coming to work regularly. 220 In light of how important consistent routines are for people with Down Syndrome, the court concluded that a jury would have to decide if the charging party’s attendance violations were merely a pretext for discrimination because of her disability . 221 Similarly in EEOC v. PML Servs. LLC , 222 the U.S. District Court for the Western District of Wisconsin denied summary judgment for an employer where the evidence showed that a housekeeper was able to do her job, provided that she was allowed some time off every once in a while to deal with her seizures, which occurred on average only once a year. 223 The court concluded that the 213 Id . at *1. 214 Id . 215 Id . at *2 (quoting 42 U.S.C. § 12111(9)(A)). 216 Id . at *5 (citations and quotations omitted). 217 Id . (quoting Arlington Central School District Board of Education v. Murphy , 548 U.S. 291, 296 (2006)). 218 Id . at *6. 219 EEOC v. Wal-Mart Stores East LP , 436 F. Supp. 3d 1190 (E.D. Wis. 2020). 220 Id. at 1201. The Court noted, however, that “[i]t was only after [employer] moved to computer scheduling and changed [charging party’s] shift and required her to work until 5:30 p.m. that she experienced significant problems with attendance.” Id. at 1202. The real question, therefore, was whether the employer should have accommodated the charging party by changing her schedule back. The employer argued that her schedule was based on computer analytics regarding customer traffic and operational demand, which showed that a Sales Associate was needed between 4:00 and 5:30 p.m. Id. The Court noted that that the Associate did not need to be the charging party, and the employer had not shown that the requested accommodation would pose an undue hardship. Id. at 1202-03. 221 Id. at 1205. 222 EEOC v. PML Servs. LLC , No. 18-CV-805, 2020 WL 3574748 (W.D. Wis. July 1, 2020). 223 In that case, the EEOC alleged that a hotel housekeeper was fired due to her seizure disorder without being offered a reasonable accommodation. Id. at *1. The employer argued that the EEOC could not establish a prima facie case of disparate treatment discrimination because it could not show that the charging party was a “qualified person with a disability” because she could not perform the essential functions of her position with or without reasonable accommodation. Id. at *5. The Court noted that