robintek

In Lawler v. Montblanc, the Ninth Circuit Court of Appeals affirmed the trial court’s order granting summary judgment in favor of an employer where the evidence was insufficient, as a matter of law, to substantiate claims for disability discrimination, retaliation, and harassment. Montblanc North America, LLC (“Montblanc”) makes jewelry, timepieces, and other luxury products that it sells wholesale and in boutique stores. Montblanc employed plaintiff Cynthia Lawler as a manager at a store with a staff of six employees. Her duties included hiring, training, and supervising sales staff; administering stocking and inventory; cleaning; creating store displays; and preparing sales reports, all of which could only be performed in the store. The store earned one-third of its annual revenue between the Friday after Thanksgiving and January 2nd. Lawler worked between 60 and 70 hours per week during the holiday season.

On June 30, 2009, she was diagnosed with arthritis, for which her doctor recommended that she limit her work to twenty hours per week. On July 23, 2009, she requested a twenty-hour work week. On July 29, 2009, Montblanc requested that Lawler provide information regarding the nature, severity, and duration of her impairment, and what accommodations could be provided for her to perform the essential functions of her job.

A few days later, she fractured her foot in connection with her arthritis. Her doctor recommended that she not return to work until September 2, 2009. When Lawler returned to the store to fax the necessary paperwork to Montblanc’s Disability insurance company, the company’s President, Jan-Patrick Schmitz, arrived for a routine inspection, during which he criticized her non-work attire, disapproved of the merchandise displays, became angry when she tried to explain the displays, and made her walk around the store (during which time another employee stepped on her injured foot). Schmitz then requested a detailed report: when Lawler explained that she could not meet his request because she was on leave, he responded “you will do it or else.”

On August 11, 2009, Lawler sent a letter to Montblanc’s human resources representative expressing her concerns about Schmitz’s “abrupt,” “gruff” and “intimidating” behavior toward her during his store visit. The human resources representative did not investigate the allegations.

On September 2, 2009, Lawler’s doctor recommended an extended leave of absence until January 5, 2010. Montblanc requested a reasonable accommodation from the doctor that would permit her to resume her regular duties, and for a date on which she could return. The doctor replied that Lawler’s status had not changed, and that she had to remain on leave until January.

On October 31, 2009, Montblanc terminated her employment, explaining that it was essential for a manager to be in regular attendance at the store, and that because she would be unable to return to work until January, she needed to be replaced.

Lawler sued for disability discrimination, retaliation, harassment, and intentional infliction of emotional distress. The trial court granted summary judgment for Montblanc, and the Ninth Circuit affirmed.

In affirming the discrimination claim, the court held that Lawler was not able to do her job “with or without reasonable accommodation,” because she admitted that her disability made it impossible for her to fulfill the duties of a store manager, regardless of an accommodation. As such, she could not meet her burden to prove that she was “qualified for the position,” an essential element of her claim.

The court also affirmed the retaliation claim, holding that Montblanc had a legitimate reason for terminating Lawler’s employment: she could no longer perform her duties as a store manager during the most critical time of the year. The court similarly affirmed summary judgment on her harassment claim, concluding that Schmitz’s conduct (criticizing Lawler’s work attire and the displays, and requesting the report) did not constitute “harassment” as a matter of law because his actions related exclusively to store operations and personnel management.

Finally, the court affirmed summary judgment on Lawler’s claim for intentional infliction of emotional distress, holding that Schmitz’s alleged “gruff,” “abrupt,” and “intimidating” conduct did not exceed the bounds tolerated in a civilized community, and simply related to business operations and her performance as a manager.

Article courtesy of Thomas Ingrassia of Petit Kohn (www.pettitkohn.com)

I ran across a study by the BMJ Group that analyzed the health impacts of shift work (non-daytime schedules) on cardio-vascular “events.” Shift work was found to increase the risk of a heart attack by 23% and to account 7% of all heart attacks. The conclusions of the study bear repeating

What’s already known

• Shift work is associated with an increased risk of hypertension, metabolic syndrome, dyslipidaemia, and diabetes mellitus.
• Disruption of circadian rhythm might predispose shift workers to vascular events; however, there’s no organized systematic synthesis of all types of vascular events.

What this study adds

• Shift work is associated with myocardial infarction, coronary events, and ischaemic stroke; although the relative risks are modest, risks attributable to population are high.
• These findings seem to be robust and insensitive to publication bias, quality of study, and socioeconomic status.
• Conversely, shift work is not associated with increased rates of mortality (whether from vascular causes or overall).

The study carries these lessons for employers:

1. Make sure that employees are aware of the health dangers posed by shift work and take steps to efforts to mitigate their effects. Preventive activities – such as proper diet and exercise, curbs on smoking, and minimizing other stressors – while important for all your employees, take on even greater significance for shift workers.
2. Review your obligations under workers comp, ADA, FMLA and regulations if an employee suffers any of these ill effects.

The National Institute of Health has created an excellent series of wellness videos. To learn more, click here http://www.nlm.nih.gov/medlineplus/tutorial.html

For a great historical perspective on the workplace go to http://www.dol.gov/100/

I recently answered this hotline question:

Question: Can an employer request/require an employee to seek counseling/therapy for anger management issues that affect their ability to perform their job?

Answer: Absolutely! In general, the ADA does not cover personality traits such as irritability, poor anger management, impulsivity, and poor judgment. What’s more, short-term conditions, such as the anger that many people experience from the actions of a co-worker, are not qualifying disabilities. As you might guess, employees have argued that their anger is related to a disability. The question then becomes can you, or should you, have to accommodate it! If, in fact, anger is related to a disability such as PTSD (http://askjan.org/corner/vol03iss02.htm), an amputation or other severe injury, or a symptom of many other disabilities (http://askjan.org/media/atoz.htm), the question still remains of whether you can accommodate it.

The science is not always clear on whether anger is a covered disability (http://www.ncbi.nlm.nih.gov/pubmed/1468908). The answer varies on a case by case basis (everyone loves that answer). I would begin with a referral to your EAP provider, if you have one. You might also consider counseling and coaching.

Also, remember that an employer has an obligation to create a safe workplace and can use a “direct threat” defense under the ADA. As one court stated: “Such a requirement would place the employer on a razor’s edge – in jeopardy of violating the Act if it fired such an employee, yet in jeopardy of being deemed negligent if it retained him and he hurt someone.”

According to the ADA when considering the risk of harm:

“People with mental disabilities cannot be excluded based on general, stereotypical assumptions about dangerousness. Any threat must be based on sound medical judgment and objective evidence of factors, such as the duration of the risk, the nature and severity of the potential harm, the likelihood that harm will occur, and the imminence of the harm. Of course a person with a disability must be able to perform the essential job functions with or without reasonable accommodations in order to be covered by the ADA.”

To learn more about accommodating anger issues, go to JAN. Also watch our recent Webinar on Accommodating Mental Disabilities.

As a final note, be sure to take mental disabilities seriously. A California jury recently granted a $21 million dollar verdict because an employer fired an employee who claimed that she had anxiety attacks, without making any effort to accommodate her. Don’t be that employer!

For years, I’ve encouraged employers, brokers, and risk managers to develop a relationship with a good occupational medicine physician for pre-hire physicals, wellness promotion, disability, FMLA, and workers comp claims. At the end of April, I’ll be speaking to the annual conference of ACOEM at their on the intersection of the ADA, FMLA, and Workers Comp (see below). I also culled from the program additional classes these physicians will be attending, to help you understand why their expertise is so much more valuable to employers than that of their non-specialized peers.

To find an occupational medicine physician in your area, go to the ACOEM website at www.acoem.org and click on the upper right hand corner. You’ll be glad you did!