By Dan Cohen – 3/18/14
I recently had the pleasure of learning that one of my cases had been affirmed by the United States Court of Appeals for the Sixth Circuit. The case, Horn v. Knight Facilities Management, No. 12-2688 (February 25, 2014), was originally filed in the federal district court for the Eastern District of Michigan. The plaintiff had alleged a violation of the Americans with Disabilities Act when my client refused to provide her with an accommodation that would have excused her from performing the worst part of her job. Although Congress had recently stripped my client (and all employers for that matter) of several key defenses to ADA claims when it passed the ADA Restoration Act, the law remains that an accommodation must still be a reasonable and effective one.
The facts of the case are straight forward. Plaintiff was responsible for using certain cleaning chemicals to perform her cleaning duties at a customer’s site. Shortly after she was assigned a new cleaning route, which required her to clean 8 restrooms, she claimed a sensitivity to the chemicals and brought a note to work that she could only clean restrooms for up to two hours a day. My client accommodated her request and reduced the number of restrooms for which she was responsible from 8 to 4. Thereafter, plaintiff continued to claim difficulties working with the chemicals and brought in a “no exposure to cleaning solutions” restriction. Because the cleaning solutions were used throughout the facility, and not just in the restrooms, my client placed her on a leave of absence and ultimately terminated plaintiff’s employment when months later, her restrictions were unchanged.
As you can imagine, the plaintiff was not real happy when she wasn’t given a cleaning route without toilets to clean. But, cleaning toilets was an essential function of the job. There were no available positions without toilets to clean and all jobs required use of the chemicals. Given these facts, I went for the admission at plaintiff’s deposition that (1) she could work anywhere in the world as long as the chemicals were not being used, and (2) she was aware of no other locations that used the precise chemicals she was using. When I obtained both admissions, I thought I was on my way to summary judgment just like 15 years earlier when I obtained those admissions in a case where an employee had become sensitive to the primary chemical used in its formula for manufacturing high school chemistry lab tables. My theory was that plaintiff was not disabled under the ADA because a substantial limitation of the major life activity of working required a limitation of one’s ability to perform a broad range of jobs rather than a single job at a single location.
Had this case been filed a year earlier, I probably would have gotten the case thrown out on this basis, but the ADA Restoration Act has effectively limited the defense’s ability to beat an ADA case on the basis that the individual is not disabled. Indeed, the intent of the Act was to lower the bar on establishing disabilities. I made the argument nevertheless, but neither the Eastern District of Michigan nor the Sixth Circuit decided the question. Both courts adopted my secondary argument: that my client had an absolute right to rely upon the restrictions placed upon the plaintiff by her own doctor at the time (nothwithstanding the doctor’s wavering testimony two years after-the-fact). Those restrictions precluded any reasonable and effective accommodation because even if plaintiff was excused from cleaning restrooms, “no exposure to cleaning solutions” means just that: she could not work with the chemicals whether cleaning toilets, counter tops, hallway floors or otherwise. So, the next time you receive a request for accommodation that purports to excuse an employee from doing something she does not like, think twice about just giving in. Look carefully at the request, and what it really means. Otherwise, you are likely to receive a multitude of such requests.