A Well Drafted Job Description/Attendance Policy proved to be Critical in Defending a Disability Discrimination Claim

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By:
JAMES M. REID

In Williams v. AT&T Mobility (6th Cir 2017), the United States Court of Appeals for the Sixth Circuit ruled that the employer’s termination of the employee was not a violation of the Americans With Disabilities Act because regular attendance was an essential function of the job and the employee could not perform that function.  The court relied in part on EEOC v Ford Motor Co. (6th Cir 2015), which reasoned that “[r]egular, in person attendance is an essential function . . . of most jobs, especially the interactive ones.” In addition, this employer listed regular attendance as an essential job function and prepared a strict attendance policy in advance of any attendance issues with this employee.

In this case, the employee suffered from depression and anxiety that caused her to miss work.  During her approximately 8 years of employment with the employer, her job duties included answering incoming calls and assisting customers while being logged in to her work computer. Although the employee had attendance issues throughout her employment, she missed approximately 7 months straight due to depression and anxiety attacks.  Thereafter, she had sporadic attendance and remained on short term disability leave for several additional months.  When the employee returned, she was warned that she would be terminated if she continued to have unexcused absences pursuant to the employer’s attendance policy.  While the employer was evaluating whether her additional absences were excused, medical evidence revealed that “she could not function at work in a call center environment” and “could not focus mentally due to mental illness.”  As a result of being incapable of having regular attendance, her employment was terminated. 

The employee sued the employer for: (1) failing to accommodate her disability; (2) failing to engage in the interactive process; (3) disparate treatment; and (4) retaliation.  As to the first claim, the employee “failed to propose any reasonable accommodation that would have allowed her to perform the essential functions of the job” since she “could not work at all for significant periods of time”.  Since the employee could not prove she was qualified to perform the job with or without a reasonable accommodation, the court did not have to address her interactive process and disparate treatment claims.  Regarding her retaliation claim, the employee was unable to show any “causal connection” between her accommodation requests and employment termination.  The court acknowledged that “there are some jobs that a person with disabilities is simply unable to perform.”

 This case gives helpful guidelines to allow employers to plan in advance and proceed with termination if the employee is unable to perform the essential job functions with or without a reasonable accommodation.  However, these accommodation cases are very fact specific.  By way of example, this case may have been decided differently if the employee was: (1) able to have regular attendance with flexible scheduling, modified break times, and/or additional leave; or (2) in a position that did not require regular attendance at the worksite as an essential function of the job.  Employers are encouraged to plan in advance by seeking the advice of counsel when creating job descriptions, drafting handbook policies, or responding to employee requests for accommodations.

This article was written by JAMES M. REID, a member of the Legal Affairs Committee of Detroit SHRM, a Resource Partner and Director of MISHRM, and a shareholder of the law firm of Maddin Hauser Roth & Heller PC located in Southfield, Michigan. He can be reached at (248) 351-7060 or jreid@maddinhauser.com. Detroit SHRM encourages members to share these articles within their organizations; however, members should refrain from forwarding them outside their organizations or printing for mass distribution without written permission of the Detroit SHRM Executive Committee March 1, 2017.