It has been a busy week, and so I am a bit late with getting a blog entry up. Also, I am off to North Carolina later today where I will be speaking at the University of North Carolina at Chapel Hill School of Government on hot issues in title I and title II of the ADA to attorneys and HR professionals as well as some others working for public entities in North Carolina. Really excited. I have never been to Chapel Hill before.

Turning to the blog entry for the week. As you know, it isn’t unusual for me to blog on cases by other legal bloggers if I feel I have something to offer. This is one of those situations. This case has been blogged upon by other legal bloggers. For example, Jon Hyman, in his Ohio employer’s Law Blog, which entry can be found here, and Eric Meyer in his Employer Handbook Blog, which can be found here. The case is Sepulveda-Vargas v. Caribbean Restaurants, LLC, which can be found here. As usual, the blog entry is divided into categories and they are: facts, court’s reasoning, and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

Caribbean Restaurants LLC is an operator or Burger King franchises throughout Puerto Rico. Plaintiff was an assistant manager there. In 2011, while he was attempting to make a bank deposit on behalf of Caribbean, he was attacked at gunpoint, hit over the head, and had his car stolen. As a result he suffered from post-traumatic stress disorder and major depressive disorder. He requested Caribbean provide him with a fixed work schedule as opposed to a rotating one and that it move him to a Burger King location in an area not prone to crime. Caribbean initially acquiesced to that request, but eventually informed him that he would have to go back to working rotating shifts. In 2013, plaintiff resigned from his position because he simply could not work the rotating shifts. Caribbean schedules all of its managers in a way so that they rotate among three distinct work shifts.

II

Court’s Reasoning

  1. A handicapped person under the ADA (say what! I actually used a term that has been offensive for over 28 years? No, I didn’t. The court actually uses the term “handicapped,” in its opinion when talking about the prima facie case), is someone who: is handicapped under the ADA; qualified to perform the essential functions of the job with or without reasonable accommodation; and the employer knew of the disability but declined to reasonably accommodate upon request.
  2. An essential function of the job is anything that is fundamental to the position.
  3. The ADA and 42 U.S.C. §12111(8) says two of the things you can look to in determining essential functions are the employer’s judgment as to what functions of the job are essential and the written job description if that job description was prepared before advertising or interviewing applicants for the job.
  4. In its implementing regulations, 29 C.F.R. §1630.2(n)(3), the EEOC talked about other situation to consider in determining essential functions of the job including: the consequences of not requiring the incumbent to perform the function; the work experience of past incumbents in the job; and the current work experience of incumbents in similar jobs.
  5. It was uncontested that from Caribbean’s point of view, working rotating shifts was an essential function of the job.
  6. Accommodating the plaintiff permanently would have had the adverse impact of inconveniencing (the term used by the court), all other assistant managers who would then have to work unattractive shifts and respond to the plaintiff’s fixed schedule.
  7. Plaintiff admitted in a deposition that rotating shifts was a responsibility he had at Caribbean and that all other assistant managers had that responsibility as well.
  8. The job application the plaintiff filled out and signed when he was hired made clear that all Caribbean managerial employees had to be able to work rotating shifts at its restaurants.
  9. The newspaper advertisement for the job listed the need for working rotating shifts as a requirement.
  10. Just because Caribbean initially granted the plaintiff the accommodation on a temporary basis to not work rotating shifts, does not mean that Caribbean conceded a rotating shift was a nonessential function. That is, evidence of a non-required accommodation does not get to be used against the company in determining what is or is an essential job function.
  11. Plaintiff also claimed hostile environment, but the court was having none of it. The court said that simple teasing, offhand comments, and isolated incidents unless they are extremely serious do not amount to an adverse employment action establishing an objectively hostile or abusive work environment.

III

Takeaways

  1. For the life of me, I can’t understand why in 2018, I am seeing the word “handicapped,” in a judicial opinion regarding the ADA. You still find the term occasionally in some statutes. However, that particular term has never been in the ADA since it was enacted in 1990. Bottom line: don’t use this term when dealing with people with disabilities. It is a separate issue as to whether you want to go with a “person with a disability,” or with “disabled.” On that score, people in the disability rights community feel very strongly both ways. You can’t lose by going with, “person with a disability.” While a person preferring “disabled,” may not like that term, it is unlikely he or she would be offended. On the other hand, calling a person “disabled,” when that person prefers “person with a disability,” does not end well. I am in the “person with a disability,” camp myself.
  2. One thing that didn’t come up in this case was whether Caribbean had the obligation to mandatory reassign the plaintiff per this blog entry. The opinion reads as if there was simply no other job that the person could be assigned to. However, that is only implicit. The court simply never addresses the mandatory reassignment question. As a matter of preventive law, you always want to explore whether reassignment is possible.
  3. With respect to determining the essential function of the job, you can take the really complicated approach offered by the EEOC or you can keep it simple. That is, anything fundamental to that position is an essential function.
  4. When the court says that accommodating the plaintiff permanently would have had the adverse impact of inconveniencing all other assistant managers working rotating shifts, that misses the point. The ADA does not use “inconveniencing,” as the standard. Rather, the standard is undue hardship. An undue hardship meaning anything that does not constitute a financial or logistical undue burden. I could see the possibility of the defense here arguing that allowing the particular accommodation requested by the plaintiff, would fundamentally alter the way the business operates. However, that is a completely different kettle of fish than being inconvenienced.
  5. If an employer wants to go beyond what the ADA allows in terms of accommodating the employee with a disability on a temporary basis, this decision gives the employer freedom to do that without being penalized for making that effort.
  6. With respect to hostile environment, it might be a good idea for a plaintiff lawyer to have an expert talking about how a person with a disability is likely to perceive teasing, offhand comments and other isolated incidents. If the jury and/or the judge do not have experience with people with disabilities, they simply may not know how such things are perceived by a person with a disability.
  7. With as many jobs being available at there are people looking for jobs, one wonders if an employer might not want to consider getting rid of rotating shifts altogether. Rotating shifts are very difficult for employees to deal with. I get the increase in personnel costs, but considering how tight it is defined applicants to fill jobs, it may be worth considering since eliminating rotating shifts would likely increase morale as well.

One Response to Rotating Shifts and Disability Sensitivity

Ah! You’re one of those people. Stick to the important issue – the case and outcome.

I’m handicapped and have been for more than 50 years, although over the years apparently I became “physically challenged,” then etc., etc., etc. I don’t bother to keep current, but I think the current PC (used in the most derogatory sense) term is that I’m disabled. Oddly enough neither my condition nor, as far as i can tell, has the general public’s perception of me changed. Quite literally, everyone I meet take me as I am, without pity or prejudice.

Changing the designation does not change anyone’s perception, and in harping on the point you are preaching only to the choir. Perception of the handicapped community’s value as people can be changed only with personal interaction. That’s not the public’s fault; we are wired that way. Changing the designation gives activists, in my experience a very large number of whom are not handicapped, a warm, fuzzy feeling of accomplishment without actually changing anything.

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