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McKenna Employment Bulletin – December 2012

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Headaches Are Not Always Confidential Medical Information

In EEOC v. Thrivent Financial For Lutherans, No. 11-2848, November 20, 2012, Seventh Circuit, the plaintiff filed an Americans with Disabilities Action alleging that the employer violated the ADA’s medical record confidentiality requirements by disclosing to potential employers the fact that the plaintiff had a migraine condition. The plaintiff disclosed this migraine condition to the employer only after the employer’s management had inquired into the plaintiff’s reason for his absence from work. The Court found that such a disclosure was not a medical examination or an inquiry under the ADA for purposes of coverage under the ADA. This was because management was unaware of the plaintiff’s migraine condition at the time it inquired into the reason for the plaintiff’s absence. Thus, the employer had no duty to treat its knowledge of the plaintiff’s migraine condition as a confidential medical record.  

An Employee May Obtain An Injunction Against A Co-Employee Sexual Harasser

In EEOC v. KarenKim, Inc., 2012 WL 5072602 (2nd Cir. 2012), an employee brought an action for sexual harassment against the employer. The employee received injunctive relief specifically directed toward insuring that the former employee who had sexually harassed the female employee was no longer in a position to so harass store employees. The harasser had been the store manager with authority over all of the employer’s employees. The harasser was and remained in a long-standing romantic relationship with the employer’s owner and the highest officer. This was the primary reason that the harassment went unchecked for years. Another reason the injunction was warranted was that the owner could, absent an injunction, rehire the harasser, and, even if he was not rehired, the harasser’s relationship with the owner, as well as other employees, made it likely that he would remain a presence at the store, and raised concerns about the adequacy of responses to any further harassment.  

Putting An Employee On A Later Shift Is A Proper Accommodation For Attending Religious Services

In Porter v. City of Chicago, No. 11-2006, November 8, 2012, Seventh Circuit, the employee alleged that the employer discriminated against the employee on account of the employee’s Christian religion by scheduling her for Sunday work that conflicted with religious services at her church. The employee also alleged that the employer failed to accommodate her request for non-Sunday work assignments. The defendant had offered to assign the employee to a later      shift on Sunday. The Court held this was sufficient accommodation for purposes of Title VII where such later shift assignment would allow the employee to attend morning church services without affecting her pay or benefits. The fact that the employee wanted the entire Sunday off as her preferred accommodation did not require a different result. The Court also found that the employee did not establish a related retaliation claim where the alleged adverse act, assignment calling for later Sunday work, came nearly one year after another prior successful accommodation request.  

Transfer To A Day Shift May Be A Required Accommodation For Sleep Apnea

In Feldman v. Olin Corp., No. 10-3955, August 27, 2012, Seventh Circuit, the employee alleged that the employer failed to accommodate the employee’s fibromyalgia and sleep apnea conditions because the employer would not transfer the employee to a day-shift only position (without rotation and overtime). The employee alleged this violated the Americans with Disabilities Act. The Court ruled there was a question of fact as to whether the plaintiff was disabled under the ADA where the employee presented medical testimony demonstrating the gravity of his sleep apnea condition that required change in his working schedule. The Court also found there was a triable question of fact as to whether working overtime and rotating shifts (which were not within restrictions of the employee’s doctor) were essential functions of plaintiff’s current job or any job to which plaintiff sought transfer.  

Transfer To A Vacant Position Can Be A Required Accommodation Under The Ada Despite Seniority

In EEOC v. United Airlines, Inc., No. 11-1775, September 7, 2012, Seventh Circuit, the Court found that the employer’s accommodation policy violated the Americans with Disabilities Act. The employer’s policy gave preferential treatment to individuals who, because of their disability, could no longer do essential functions of their current job, even with reasonable accommodation, by assigning said individuals to vacant positions for which they were qualified, However, the employer would assign employees to those positions only if there were no more- qualified candidate for the job. The Court found that the ADA requires automatic placement of disabled employees into vacant positions as long as they are qualified for said positions as long as the placement would not present undue hardship to the employer. The Court further found that accommodation requests that would violate seniority systems would ordinarily be unreasonable, but disabled employees would still be free to present evidence on a case to case basis to show that placement in spite of seniority would be reasonable.  

This Employment Bulletin is intended to provide information of general interest and does not constitute legal advice. Readers should consult with their counsel before taking any action based on the information in this publication. All rights reserved. Copyright 2013, McKenna Storer. 

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