By: Carol G. Schley, Clark Hill PLC
In many instances, Michigan’s anti-discrimination laws are construed consistently with their federal counterparts. However, the Michigan Court of Appeals recently interpreted Michigan’s Persons With Disabilities Civil Rights Act (“PWDCRA”) differently that its federal equivalent, the Americans with Disabilities Act (“ADA”), and in a manner beneficial to the employer involved in that case.
In Payment v. Department of Transportation, 2017 WL 3441453 (2017), Mary Payment claimed her employer’s decision to deny her a promotion was based upon her depression and anxiety, and that this action by the employer constituted disability discrimination under the PWDCRA.
The first issue addressed by the court was whether Ms. Payment actually had a “disability,” which it defined as “a determinable mental characteristic of an individual that substantially limits at least one major life activity and is unrelated either to the person’s qualifications for their job or ability to perform their job duties.” On this issue, the court acknowledged that depression and anxiety can be disabilities under certain circumstances. However, the court held that based upon the facts presented, Ms. Payment was not disabled because the medication she took for her conditions resulted in her symptoms being “pretty much in remission.”
In considering the mitigating effects of Ms. Payment’s medication in determining whether or not she was disabled, the court followed prior Michigan case law concerning the PWDCRA, and expressly rejected Ms. Payment’s argument that PWDCRA should be interpreted consistently with the ADA, under which mitigating factors are in most instances not considered. According to the court, “[t]he PWDCRA and the ADA are not identical, and federal laws and regulations are not binding authority on a Michigan court interpreting a Michigan statute.” (citations omitted).
Even though Ms. Payment did not have an actual disability under the PWDCRA, the court held that Ms. Payment could still establish a claim if she could demonstrate she was “regarded” as disabled. However, the court found that Ms. Payment could not prevail on this theory either because she failed to show that the alleged negative employment action (being passed over for a promotion) was due to her being regarded as disabled. Instead, the court found that the employer’s decision, even if misguided, was based upon lawful performance metrics. On this point, the court noted:
[E]mployers are permitted to make foolish, counterproductive, or otherwise generally bad business decisions. The dubiousness of an employer’s business judgment does not create a question of fact whether an articulated non-discriminatory reason is pretextual.
Finally, the court rejected Ms. Payment’s claim that the employer’s decision to not promote her was unlawful retaliation for her filing of a charge with the EEOC. The court noted that a “mere temporal coincidence” between a protected activity and an adverse employment action is insufficient to prove retaliation. While the court noted “some unfairness” in the fact that Ms. Payment was not promoted, “the unfortunate fact is that it is normal to base hiring decisions as much on whether the interviewer happens to like the interviewee as on objective merit, however that merit is evaluated. Perhaps it should not be so, but that is outside the scope of the PWDCRA or, for that matter, the courts.”
While the employer prevailed in Payment, its holding allowing for consideration of medication and other mitigating factors when determining the existence of a disability was limited to claims brought under Michigan’s PWDCRA. In many instances, where an employee asserts a claim of disability discrimination, he or she will bring claims not only under PWDCRA, but also the ADA (which applies to employers with 15 or more employees). Therefore, employers cannot “rest easy” on the Payment case when addressing alleged employee disabilities, and still should proceed with caution and pursuant to the more stringent standards governing the ADA which construes the definition of a “disability” much more broadly and without consideration of most mitigating measures.
When an employee presents issues that may involve a disability, the most important thing for an employer to do is to engage in a meaningful, fact-specific interactive process with the employee. Given the complexities involved in handling disabilities in the workplace, it is also advisable to consult an employment attorney to help guide the process.
Carol G. Schley is a member of the Detroit SHRM Legal Affairs Committee and an attorney at the law firm Clark Hill PLC. She can be reached at email@example.com or (248)530-6338.
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