Restraining Unruly Children as an Essential Job Element: Expected in Secondary Schools but Not at a Youth Detention Center? A Cautionary Tale in the ADA Reasonable Accommodation Arena
In a recent blog post, I discussed the fact that under the reasonable accommodation provisions of the ADA, employers generally are not required to provide their employees with a stress-free work environment or one that possesses a “just right” amount of stress, which I referred to as a Goldilocks work environment (Read More). But what if the job, albeit not one universally considered to be particularly dangerous (such as a police officer or fireman), nevertheless involves exposure to potentially physically harmful situations? Must the employer provide a reasonable accommodation that eliminates such exposure? Two recent cases, reaching opposite conclusions to this question, address critical distinctions in the analysis: First, who decided that the potentially harmful exposure is an essential element of the job, the employer or the employee? Second, if the employer made that determination, how clearly is that element set forth in the job description or other documentation?
In both cases, the job element in question was the ability to confront, and if necessary physically restrain, children. In Grant v. County of Erie, Case No. 1:12-cv-00651-LGF (W.D.N.Y. 5/18/17), the plaintiff was a Youth Detention Worker (YDW) at the Erie County, New York youth detention center, where juvenile delinquents ages 8 to 18 were housed. As a YDW, the plaintiff was required to transport residents within the facility and to escort residents to off-site locations such as family court appearances. On two occasions in the mid- to late 2000’s, the plaintiff injured her hand while restraining a child. Following the second incident, the plaintiff was placed on workers’ compensation leave and ultimately was discharged after exhausting the maximum leave allowed under County policy. The plaintiff subsequently filed suit alleging, among other things, a claim of failure to accommodate and disability-based discriminatory discharge under the ADA. With respect to these claims, the plaintiff asserted that the County could have allowed her to remain on leave until she was physically released to work without any restriction on her ability to restrain detention center residents and/or could have removed any such resident-restraining duties from her job. The County responded that restraining residents at the youth center unquestionably was an essential function of the YDW job and that allowing the plaintiff to remain on leave for what was at the time an indefinite period was not reasonable.
Meanwhile, in Brown v. Milwaukee Board of School Directors, 2017 U.S. App. Lexis 7958 (7th Cir. May 4, 2017), the plaintiff was an assistant vice principal in the Milwaukee public school system who badly injured a knee while restraining a student. After the plaintiff underwent knee replacement surgery, her treating physician stated that the plaintiff “should not be in the vicinity of potentially unruly students” and added that this restriction was permanent, or would last for at least a few years. The plaintiff remained on leave for several years while attempting to locate a job within her restriction but all except one such available position placed her in proximity to “potentially unruly” students (as all students are, the Court of Appeals noted) and the remaining position would have been a promotion, something not required by the ADA. Eventually, the plaintiff’s leave expired and she was discharged. She brought suit against the school system, alleging that they failed to reasonably accommodate her by placing her in one of the available positions that she identified while on leave.
Now, one might assume – and Erie County certainly agrees – that working directly with the residents of a juvenile detention center necessarily and routinely involves physical confrontations between the residents, or between a resident and staff members, that require restraining the resident(s). On the other hand, one might also assume that while physical restraint of secondary schoolchildren happens on occasion, it is not an essential duty of the administrative staff at a school. Nevertheless (and notwithstanding the author’s personal recollection of what appeared to be the primary duty of the assistant vice principal at his high school), the opposite conclusion was reached in these cases. Why?
In Grant, the employer contended that an essential element of the YDW job involved physical restraint of the children, yet its own job description made no mention of this responsibility. Moreover, the plaintiff presented evidence that YDWs were required to obtain assistance in all cases when restraint of a resident was necessary and such assistance typically arrived within a matter of seconds, thereby alleviating her of any individual restraint responsibility. Furthermore, she asserted, she had never been attacked by a resident, having been injured on both occasions when assisting other YDWs with take-downs. Perhaps most telling, the County had reasonably accommodated another YDW for one- to two-month periods by assigning her light duty that did not require restraint of residents. As a result, the trial court denied the employer’s summary judgment motion on this claims. On the other hand, in Brown the plaintiff and her treating physician, not the employer, repeatedly insisted that she was incapable of performing her job due to the inability to be near “potentially unruly” children; the school system merely abided by her contention when it rejected every proposed accommodation as not satisfying the plaintiff’s work restriction. Thus, the Court of Appeals upheld the district court’s grant of summary judgment to the employer.
These cases exemplify important points when undertaking an ADA reasonable accommodation analysis. First, if an employee insists that he or she cannot perform an essential function of his or her job due to a work restriction he or she has put forth, the employer should consider whether it can accommodate that restriction, even if it may not necessarily agree that the job function at issue is essential. In doing so, the employer eliminates any subsequent argument that it refused a proposed accommodation on the grounds that the job duty was non-essential, should a court conclude otherwise (or at least conclude that a question of fact exists as to the essentiality of the duty). On the other hand, if the employer asserts that a particular job function is essential, it should ensure that the function is clearly delineated as such, preferably in a thorough job description. As in all cases where a reasonable accommodation request is at issue, employers are encouraged to thoroughly examine and respond to the request, preferably with the guidance of human resources professionals and/or legal counsel.