Ninth and Eleventh Circuits: Reporting To Work Impaired, Failing Drug Test, And Failing To Request Accommodation Doom Employees’ ADA Discrimination Lawsuits
As most readers of this blog are aware, the Americans with Disabilities Act (“ADA”) and analogous state laws prohibit employers from discriminating against qualified employees (and applicants) based on known physical or mental disabilities, and also require employers to provide those employees with reasonable accommodations for their disabilities. Although broad in their protections, these laws have limits, as two recent federal appellate court decisions illustrate.
In Connelly v. WellStar Health System, Inc., the Eleventh Circuit evaluated a plaintiff’s claims against her former employer under the ADA for discrimination, failure to accommodate, and retaliation after it terminated her based on its belief that she had reported to work under the influence of drugs.
When evaluating ADA claims of discrimination, courts apply a multi-step, burden-shifting framework, under which the employee bears the initial burden to demonstrate that she is a qualified, disabled individual who experienced an adverse employment action. If the employee establishes these facts, the burden shifts to the employer to provide a legitimate non-discriminatory explanation for its decision, here to terminate employment. If it does so, the burden shifts back to the employee to prove that the employer’s explanation was not the true reason for its actions by showing, for example, that the decision was a departure from the employer’s normal policies, thereby suggesting that the decision was motivated by discriminatory intent.
Under this framework, the plaintiff in Connelly easily satisfied her initial burden by showing that she has a disability and was terminated. In response, her employer explained that it terminated her because she reported to work with undisclosed prescription drugs in her system, which was a violation of the employer’s drug policy. The court found that the employer’s explanation established a “legitimate, non-discriminatory reason” for her termination. The court further determined that the plaintiff did not rebut that explanation because she failed to present any specific evidence that showed that the employer’s explanation should not be believed (or, in other words, that it was a pretext for discrimination). She argued that the employer’s reason was a pretext because the employer did not consult a physician to determine if the unreported drugs actually caused the impairment. The court however rejected this argument, explaining that the employer’s honest belief that the drugs were the cause of the impairment was enough to establish a legitimate reason, even if that belief was mistaken. She also argued that pretext could be found because the employer deviated from its policy by not providing her with a chance to dispute the drug test results. The court rejected that argument as well, concluding that this deviation did not suggest discrimination.
The plaintiff’s failure-to-accommodate claim also failed – which was not a surprise as the court determined that she never requested any accommodation. Under the ADA, an employer’s failure to reasonably accommodate can itself constitute discrimination if the individual is otherwise qualified and providing the accommodation would not present an undue burden or hardship to the employer. Although an employee alleging failure-to-accommodate need not show that her employer enforced a policy in a discriminatory manner, and instead only needs to “identify an accommodation and demonstrate that it is reasonable,” the employer is not obligated to provide any accommodation unless and until the employee makes a direct request (unless the need for an accommodation is obvious, i.e., an employee who uses a wheelchair), which the plaintiff in Connelly didn’t.
Last, the court rebuffed the plaintiff’s retaliation claim. The same burden-shifting analysis described above also applies to retaliation cases. However, because she never requested an accommodation, her ADA retaliation claim, which was based on her employer’s supposedly hostile response to a never-requested accommodation, necessarily failed.
The day after Connelly was decided, the Ninth Circuit came to the same conclusion in Fragada v. United Airlines, Inc., a case with very similar facts. In Fragada, the plaintiff’s employment was terminated after he failed a drug test (thereby violating company policy). Like the plaintiff in Connelly, he sued, alleging disability discrimination under the California Fair Employment and House Act (“FEHA”) and disputing the test results. The court, using a similar burden-shifting analysis as was applied in Connelly, concluded that the employee failed to rebut the employers legitimate, nondiscriminatory reason for the firing or show that the employer’s reason for his termination was pretextual. In addition, the court rejected the plaintiff’s failure-to-accommodate claim because, like the plaintiff in Connelly, he had not requested an accommodation in the first instance.
Although straightforward, these cases provide a good reminder of the limits and requirements under the ADA and other similar state laws, and they demonstrate how courts analyze claims under these statutes.