Today’s blog entry is a case that many bloggers are blogging about. As y’all know, I am not afraid to blog on cases that others have blogged on if I feel I can offer my own perspective. This case certainly fits the bill. The case is the 11th Circuit published decision, here, Beasley v. O’Reilly Auto Parts, decided on May 24, 2023. The case deals with several issues that are worth exploring, including the issue of privileges and benefits that we started on last week. Also, nothing in the last week came in that would cause this case to be postponed. So here goes on the case I said I would blog on last week. As usual, the case is divided into categories and they are: facts; court’s reasoning that adverse action is required in failure to accommodate cases; court’s reasoning that the ADA applies to privileges and benefits of employment; court’s reasoning that reasonable accommodations requirements extend beyond essential job functions; court’s reasoning that essential functions can be more than just the specific job activities or tasks; and thoughts/takeaways. As usual, the reader is free to concentrate on any or all of the categories.

 

I

Facts

 

Beasley is culturally deaf, Deaf, and can only understand about 30% of verbal communication through lipreading. He communicates primarily through American sign language.

 

Beasley requested text message summaries of nightly pre-shift meetings, but those were not regularly sent to him, and the one that he was sent were incomplete. He eventually requested an ASL interpreter to discuss with management his exclusion from the nightly meetings but none was provided. The nightly meetings were mandatory and included safety information.

 

O’Reilly failed to provide Beasley with an ASL interpreter to resolve a disputed disciplinary matter that arose after he missed some nights of work in July 2017. Beasley maintained that his time off have been approved, and he requested an interpreter to help them resolve the dispute about the time off with the human resources department. He wasn’t provided an interpreter and maintains that the discipline O’Reilly imposed on him as a result affected his attendance record, which in turn adversely affected his pay.

 

Beasley also requested an interpreter for O’Reilly’s company picnic. O’Reilly tried to provide one but scheduling conflicts prevented it. Beasley’ asked his wife to accompany him to the picnic, and she was able to interpret for him.

 

A few weeks after emailing an HR representative to ask if any day shift positions were available and being informed that none were available, Beasley received a final warning for arriving late to work twice in January. That same day he received that warning, Beasley submitted his resignation. In explaining his decision to resign, he explained that problems communicating with his supervisor and the inadequacies of the meeting summaries his supervisor had given him contributed to his decision to leave. He explained that he had tried to communicate with his supervisor after the night shift meetings but there was no way that one whole sentence equals 5 to 10 minutes of conversation. Beasley also said that he had tried to work things out but it seemed like the supervisors were not doing their job.

 

 

II

Court’s Reasoning That Adverse Action Is Required In Failure To Accommodate Cases

 

  1. An employer violates the ADA when it: 1) discriminates against a qualified individual on the basis of disability; and 2) does so in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
  2. Discrimination occurs when the employer fails to provide a reasonable accommodation for the disability unless doing so would impose an undue hardship on the employer.
  3. An employer’s failure to reasonably accommodate an otherwise qualified disabled individual itself constitutes discrimination under the ADA unless the employer can show an undue hardship.
  4. Discrimination in the form of a failure to reasonably accommodate is actionable under the ADA only if that failure negatively impacts the employee’s hiring, advancement, discharge, compensation, training, and other terms, condition, and privileges of his employment.
  5. Beasley must show that any failure of O’Reilly to accommodate his deafness negatively impacted the hiring, promotion, firing, compensation, training, or other terms, condition, or privileges of his employment.
  6. Since Beasley was hired and resigned, no adverse action exists with respect to either hiring or being terminated.
  7. With respect to failure to provide an interpreter during his forklift training and the company picnic, Beasley presented no evidence of any adverse employment decision or any other adverse consequences related to O’Reilly’s failure to provide an interpreter in either of those situations. Therefore, his failure to accommodate claims in these two particular instances fail.

 

III

Court’s Reasoning That The ADA Applies To Privileges And Benefits Of Employment

 

  1. A factfinder could reasonably determine that Beasley’s inability to understand or participate in pre-shift meetings did adversely affect the terms, conditions, and privileges of his employment.
  2. O’Reilly personnel testified that important safety information was disseminated at the mandatory nightly meetings and that if an employee didn’t hear the safety information, that would be a failure. Safety is self-evidently a condition of employment in a warehouse, and failure with respect to safety is an important failure.
  3. A jury could reasonably find that if Beasley had been provided with more complete summaries of, or an interpreter for, safety meetings, he would have received higher ratings in at least some of the categories of safety housekeeping, quality of work, productivity, teamwork, and job knowledge. A higher ratings on those evaluations would have meant higher pay.
  4. Pre-shift meeting information was apparently deemed essential for every team member on every shift, which is why everyone had to attend. In fact, O’Reilly personnel testified that the meetings were important for teambuilding, disseminating information, about each employee’s task for that day. He also testified that even when there was nothing major to discuss before a shift, the replenishing team would have a pre-shift meeting because they do it every day and that is how they start their day. So, everyone except Beasley, benefited from the meetings.
  5. A factual dispute exists whether the failure to provide Beasley with the accommodation he requested for the HR meetings prevented him from adequately discussing and successfully resolving the disciplinary dispute. That failure in communication may have adversely affected subsequent discipline and O’Reilly’s evaluation, pay, and the later disciplinary actions imposed upon him.

 

IV

Court’s Reasoning That Reasonable Accommodations Requirements Extend Beyond Essential Job Functions

 

  1. The District Court wrongfully thought that 11th Circuit precedent required Beasley to show his requested accommodations serve an essential job function and concluded that none of them did.
  2. The ADA, 42 U.S.C. §12112(a), plainly prohibits discrimination against a qualified individual on the basis of disability in regards to terms, condition, and privileges of employment.
  3. Terms, conditions, and privileges of employment are more than just the essential functions of a job. 42 U.S.C. §12112(a); 29 C.F.R. §1630.2(o)(1), (3) (the court only cites to §1630(o)(1) but §(o)(3) also lends support to this statement).
  4. In a footnote, the court noted that other Circuits (D.C., Fifth Circuit, and the 10th Circuits), addressing the issue of whether an accommodation must relate to the essential functions of the job have held that the ADA statutory text and its final implementing regulations do not require a plaintiff to show a connection between the reasonable accommodation and the essential functions of his job.
  5. A variety of cases seeming to suggest that accommodations must relate to the essential functions of the job are readily distinguishable or that question was simply not the point in those cases.

 

V

Court’s Reasoning That Essential Functions of a Job Can Be More Than Just the Specific Job Activities or Tasks

 

  1. Regardless of whether accommodations cannot expand beyond those enabling a person to perform the essential functions of the job, it doesn’t matter in this case because attending HR disciplinary meetings and attending the safety meetings are both essential functions of Beasley’s job.
  2. Essential functions of a job are the fundamental job duties of a position that an individual with a disability is actually required to perform.
  3. When determining what is essential, consideration shall be given to the employer’s judgment as to what functions of a job are essential. Such judgment includes the opinion of the plaintiff’s supervisor.
  4. Other relevant factors in determining whether a function of the job is essential include: 1) the amount of time spent on the job performing the function; 2) the consequences of not requiring the incumbent to perform the function; 3) the terms of a collective bargaining agreement; 4) the work experience of past incumbents in the job; and 5) the current work experience of incumbents in similar jobs.
  5. Evidence indicates that attending the replenishment team’s nightly pre-shift safety meeting and understanding what was said during those meetings were essential components of Beasley’s employment. O’Reilly personnel testified as such. Further, the meetings were mandatory, which is an indication of their importance. Beasley simply didn’t have the option to skip those meetings, even if he was unable to understand what was being said during those meetings.
  6. While it is true the pre-shift meetings were not included in Beasley’s official job description, those meetings were still mandatory and not optional.
  7. With respect to the HR disciplinary meetings, attendance at those meetings was essential as was his ability to participate meaningfully in those meetings. In particular, O’Reilly HR representative testified that disciplinary warnings involve an opportunity for both verbal and written communication, which is an important part of the progressive discipline process. An O’Reilly manager also testified that the coaching flowing from the disciplinary process are designed to help team members improve and succeed. That same person testified that disciplinary meetings are important for both sides to fully participate in and that O’Reilly wanted every team member to have that information communicated in those meetings. Accordingly, a reasonable jury could find that even though disciplinary meetings were not part of Beasley’s day-to-day functions as an inbound materials handler, they were an essential part of his job. Finally, the result of those disciplinary proceeding directly affected the amount of pay raise that he received.

 

V

Thoughts/Takeaways

 

  1. The 11th Circuit is making it quite clear that it is the disability that gets accommodated and not the essential job functions. They make that quite clear in this case as well is in the case that we discussed in this blog entry.
  2. As mentioned last week, the Department of Justice has asked the United States Supreme Court to decide what privileges and benefits are with respect to title VII cases. Since the ADA has the same identical terms as in title VII, those cases bear watching. Interestingly enough, I saw today that the City of St. Louis and the State of Alabama have both asked the court not to grant the petition to hear the case.
  3. The courts are split on whether a failure to accommodate requires an adverse action. We discussed a case here where the 10th Circuit held that a failure to accommodate does not require an adverse action. Ultimately, this will have to be decided by the United States Supreme Court. As a person with a disability that has been involved on a personal level in failure to accommodate situations, I can tell you there is most definitely an adverse action on the person with the disability when the person with the disability encounters a failure to accommodate.
  4. Privileges and benefits of employment is a far broader term than essential functions of the job.
  5. The obligation to accommodate a person with a disability extends beyond essential functions of the job to privileges and benefits of employment and the like. Terms, conditions, and privileges of employment are more than just the essential functions of the job.
  6. This is an employment matter, but don’t forget about the title II and title III effective communication rules, whether using them as a guidance in a title I matter or when involved in a title II or title III matter.
  7. A job function could be essential even if it is not listed as such in a specific job description.
  8. Job descriptions are very important in these kinds of matters, but the analysis does not end there.
  9. The decision is published.
  10. The court holds an adverse action is required in failure to accommodate cases, but I don’t necessarily find the authority they turned to persuasive on that point. It also isn’t a far stretch from the opinion to say that the failure to accommodate itself is an adverse action. Beasley comes awfully close to holding as much even if it doesn’t quite get there.
  11. Even if Beasley doesn’t quite get there in terms of saying that a failure to accommodate is an adverse action, it does make it clear that adverse action is a term to be construed broadly.
  12. The Circuits are split on the question of whether a failure to accommodate requires an adverse action in addition to the failure to accommodate. Ultimately, the Supreme Court will have to step in to decide that question.
  13. Beasley is represented by Andrew Rozynski of Eisenberg and Baum whose cases I blog on from time to time.