Picture: A glock pistol, set against a dark background, standing up with barrel pointed down on a brown hardwood floor with its magazine lying next to it.
This blog entry will be the last substantive blog entry of the year. The next blog entry for the calendar year will be my greatest hits and other important blog entries that I put up every year around this time. I do want to wish everyone celebrating, a happy Hanukkah (last I checked, there were at least eight different English spellings of the holiday).
Of course, I write frequently on failure to accommodate cases as that is certainly a big part of the ADA, though certainly not the only part. The one thing I have never done is exploring the possibility of what happens when a job requires firearm proficiency where the particular firearm required is something that a person with a disability can’t use effectively, but he can use other firearms. Is using a different firearm a reasonable accommodation? The case of the day is Hampton v. Utah Department of Corrections, here, a published decision from the 10th Circuit decided on December 4, 2023. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning why the failure to accommodate summary judgment gets reversed; court’s reasoning why summary judgment gets affirmed when it comes to the disparate treatment claim due to a lack of causation; court’s reasoning why summary judgment gets affirmed when it comes to the disparate treatment claim due to the lack of an adverse action; court’s reasoning why summary judgment on the retaliation claim gets affirmed; Judge Bachrach’s concurring opinion; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.
Mr. Hampton was born missing the second and fifth digits on both hands, the result of a congenital birth condition. Mr. Hampton’s hand and wrist structures also lack the bones, tendons, and muscles associated with those fingers. Because of this disability, Mr. Hampton encounters difficulties “grasping, pulling, or performing other . . . functions with his hands.”
In May 2016, UDC hired Mr. Hampton to serve as a Corrections Officer. Mr. Hampton had previously worked for the Arizona Department of Corrections. UDC Warden Larry Benzon hired Mr. Hampton with knowledge both of his disability and Mr. Hampton’s possible future need for accommodations.
Mr. Hampton worked first as a “Utility,” a nonpermanent role in which he rotated through different assignments at UDC. While the Utility role itself is generally unarmed, some of Mr. Hampton’s assignments required him to carry a firearm. Indeed, the record indicates Mr. Hampton had occasion to carry a weapon almost 80 times while serving in the Utility position.
As a condition of eligibility for permanent employment, UDC requires Corrections Officers to complete the Department’s Training Academy. Corrections Officers must train and qualify on UDC-approved “department-issued firearms.” Department policy approves only Glock-brand firearms.
During his employment interview, Mr. Hampton informed Warden Benzon he “may need an accommodation in the weapons when he goes through the [A]cademy.”
After he was hired, and several weeks before beginning the required firearms training at the Academy, Mr. Hampton remained concerned about his ability to complete the training and qualify on the Department-approved Glock 17 because of his disability. Mr. Hampton reached out to Aaron Horsley, then serving as UDC Firearms Training Coordinator. Mr. Horsley provided Mr. Hampton a plastic gun similar to the Glock 17 and a holster for practice before the training began. On July 7, 2016, Mr. Hampton successfully completed the firearms training, qualifying to use all three UDC-issued firearms: the Remington, the Colt, and the Glock. He requalified, as the Department requires, in July 2017.
Though he had passed the firearms training, Mr. Hampton was still worried about using the Department-issued Glock on the job. On February 8, 2017, Mr. Hampton wrote to UDC’s Human Resource Specialist, Jennifer Wilde, to request an accommodation. After receiving an email requesting specific information about the proposed accommodation, Hampton sent information about a 911 series handgun manufactured by Springfield Armory that would accommodate his disability.
Mr. Hampton received no response from UDC for two months, so in April 2017, he took it upon himself to speak with Mr. Knorr about his requested accommodation. Mr. Knorr denied Mr. Hampton’s accommodation after deciding the Department “do[esn’t] hand out 1911s.” Id. at 1334. Mr. Knorr never informed Mr. Hampton of this rejection in writing. Ms. Wilde likewise never provided Mr. Hampton a written denial of his February 2017 accommodation request.
While still serving in the temporary Utility role, Mr. Hampton applied for multiple permanent armed positions with the Department. He ultimately secured an unarmed permanent position as a “Timpanogos Rover” (Timp Rover) on June 17, 2017. In certain circumstances and during some overtime assignments, however, Mr. Hampton was still required to carry a firearm.
Six days into his assignment at Timp Rover, one of his rotations, he became the subject of an administrative review regarding two separate incidents, one of which involved handling the weapon that he had never been trained on. He was subsequently fired apparently with no knowledge of his prior accommodation requests. When he found out that the grievance policy didn’t apply because he was a probationary employee, he filed a charge with the EEOC and subsequently brought suit for violation of §504 of the Rehabilitation Act.
Hampton’s particular claims alleged failure to accommodate, retaliation, and disparate treatment. For the reasons we will discuss below, the 10th Circuit reverses the summary judgment on the failure to accommodate claim and remands that claim for further proceedings. They also affirmed the summary judgment on the disparate treatment and on the retaliation claims.
Court’s Reasoning Why the Failure to Accommodate Summary Judgment Gets Reversed
- The definition of disability discrimination in the ADA includes not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability.
- To state a claim for failure to accommodate, a plaintiff has to show: 1) he is disabled; 2) he is otherwise qualified for the job; and 3) he requested a plausibly or facially reasonable accommodation, all of which is not an onerous test.
- Plaintiff does not need to establish discriminatory intent because the law assumes that any failure to provide reasonable accommodation for disability is necessarily because of the disability.
- A reasonable accommodation are those accommodations which presently, or in the near future, enable the employee to perform the essential functions of his job.
- Essential functions of the job are the fundamental job duties of the employment position the individual with the disability holds or desires.
- In determining whether a function is essential, relying, in part, on what the employer says the fundamental duties are is perfectly appropriate. Courts must give consideration to the employer’s judgment as to what functions of the job are essential.
- A function of the job does not become essential just because an employer says so. It is true that courts will usually defer to the employer’s judgment absent evidence suggesting the purportedly essential function has a tangential relationship with the actual job, is inconsistently enforced, or otherwise lacks a connection with business needs.
- An employer cannot turn every condition of employment it elects to adopt into a job function, let alone an essential job function, by merely including it in a job description.
- The simple fact that accommodation requested would permit the worker with a disability to violate a rule that others must obey cannot in and of itself automatically show that the accommodation is not reasonable. Concluding otherwise would prevent Congress’s disability legislation from accomplishing its intended objective.
- Most employers have neutral rules governing the kinds of actions most needed to reasonably accommodate a worker with a disability. Where the fact of a neutral rule’s existence enough to defeat a requested accommodation that is otherwise reasonable, accommodations would be very rarely granted.
- Congress said nothing suggesting that the presence of neutral rules would create an automatic exemption sufficient to defeat a request for reasonable accommodations.
- By the departmental policy’s own terms and be defendant’s own summary of those policies, the relevant essential function of Hampton’s employment would seem to be his ability to safely carry and use a firearm rather than just the departmental approval firearm when required.
- The proposed accommodation would help Hampton perform that essential function, which is enabling him to carry a firearm safely on an equal footing with his peers. At a minimum, Hampton has raised a genuine issue of material fact on the essential functions of his employment. His requests certainly fit neatly within the categories of accommodations contemplated by Congress.
- The ADA and its final implementing regulations make clear at 42 U.S.C. §12111(9)(B) and 29 C.F.R. §1630.2(o)(2)(ii), that reasonable accommodations include the acquisition or modification of equipment or devices. Accordingly, to find the acquisition of or modification of equipment or devices facially unreasonable when Congress used it as a classic example of a reasonable accommodation, would frustrate Congress’s stated ends.
- This is not a situation where Hampton seeks to eliminate an essential function of the position. Instead, he sought an accommodation in furtherance of doing his job. That is, he requested acquisition of equipment or devices so he could perform his job safely on an equal footing with his peers.
- The idea of an accommodation is to allow an employee to perform the essential functions of his job.
- Using a Glock-platform handgun was not an essential function of Hampton’s employment.
- When it comes to showing that a facially reasonable accommodation was requested, that is not a heavy burden for plaintiff to meet. A plaintiff only has to suggest the existence of a plausible accommodation, the cost of which on its face do not clearly exceed its benefits.
- It is possible that the costs of providing Hampton a handgun other than a preapproved Glock could result in an undue hardship to the department, but that is a matter for the district court to address on remand if the defendant seeks to establish the affirmative defense of undue hardship (the court lays out what is involved in the undue hardship inquiry in a footnote).
- In a footnote, the court said that they do not need to address the interactive process argument because the district court was reversed in its essential function determination.
Court’s Reasoning Why Summary Judgment Gets Affirmed When It Comes to the Disparate Treatment Claim Due to a Lack of Causation
- Hampton did not allege sufficient facts to show that he was terminated because of his disability. That is, while Hampton’s employer undeniably knew of his disability, there isn’t sufficient evidence to show discriminatory animus (intent). In fact, defendant accommodated Hampton throughout the on boarding process and through the firearm training.
Court’s Reasoning Why Summary Judgment Gets Affirmed When It Comes to the Disparate Treatment Claim Due to a Lack of an Adverse Action
- An adverse employment action is one causing a significant change in employment status or benefits.
- While the 10th Circuit liberally defines “adverse employment action,” it still requires a change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.
- While Hampton’s responsibilities were clearly altered when he was assigned from a temporary post to a permanent one, alteration of responsibilities alone does not make an employment action adverse.
Court’s Reasoning Why Summary Judgment on the Retaliation Claim Gets Affirmed
- Hampton cited no evidence in the record indicating that the decision-makers with respect to the termination decision were aware of the accommodation requests prior to the termination decision.
Judge Bachrach’s Concurring Opinion
- To determine whether a job function is essential, a set of regulatory factors, 29 C.F.R. 1630.2(n)(3), is reviewed.
- Applying those factors, leads a reasonable factfinder to conclude that the ability to safely use a department issued handgun was not an essential function of the job.
- How the essential function of the job is phrased can be important. For example, in this case, is the essential function of the job using a Glock handgun or is the essential function of the job using a firearm? As you can see from the majority and concurring opinions, you can get to two different places depending upon the answer to this question.
- This is a Rehabilitation Act claim. So, using the term “otherwise qualified,” was perfectly appropriate. The ADA uses the term “qualified,” but the two terms are identical in their meaning.
- One may wonder why title I of the ADA was not involved as it is clearly an employment matter involving an employer of more than 15 individuals. The obvious answer is that receipt of federal funds waives sovereign immunity under the Rehabilitation Act according to the overwhelming number of cases addressing that question. A title I case would have undoubtedly run into sovereign immunity. §504 does apply to employment.
- Discriminatory intent is not necessary in failure to accommodate cases, but it is required in disparate treatment cases.
- Courts give consideration to the employer’s judgment as to what functions of the job are essential, but that judgment isn’t necessarily dispositive. Keep in mind, how likely a court is to look under the hood so to speak varies from judge to judge.
- Very helpful guidance from the court as to when a court will look under the hood with respect to the employer’s judgment regarding essential functions of the job. In particular, the court says that courts usually defer to the employer’s judgment absent evidence supporting the purportedly essential function as a tangential relationship with the actual job (i.e. a marginal function of the job), is inconsistently enforced, or otherwise lacks a connection with business needs.
- Just because an essential function is in the job description and listed as such doesn’t make it so.
- Reasonable accommodations may include modifying neutral policies and procedures.
- It is clear from the decision that plaintiff’s burden to suggest a plausible accommodation is not a heavy burden for a plaintiff to meet. However, I don’t understand what the phrase “a plaintiff only has to suggest the existence of a plausible accommodation, the cost of which on its face do not clearly exceed its benefits,” actually means. That is, I get the first part of the phrase, but I don’t get the part that states, “the cost of which on its face do not clearly exceed its benefits.”
- As the court points out in a footnote, it is not a simple matter at all for an employer to show undue hardship because you look to the entire resources of the entity. Impossible to believe that the entire resources of the Utah Department of Corrections are going to be jeopardized by providing Hampton with an alternative handgun.
- Yesterday, I blogged briefly on the Muldrow oral argument, here. Look to that case for any indication about whether adverse employment actions will be required in failure to accommodate cases. For now, the cases on that issue are all over the place, so be sure to check your own jurisdiction.
- I am not sure I entirely follow how the retaliation claim gets tossed because the ADA with the exception of the 11th Circuit when it comes to nonfederal governmental entity employees, here, does not have any individual liability under any circumstances for retaliation. Accordingly, it is the entity that has the responsibility and any notice to an employee of that entity would imbue to the entity as a whole.
- It seems to me that Judge Bachrach’s concurring opinion suffers from the fact that the question is whether a person can do the essential functions of the job with or without reasonable accommodations. My read of that opinion is that the “with or without reasonable accommodations,” piece gets short shrift in the concurrence. That is, don’t fall into the trap of forgetting that qualified/otherwise qualified refers to with OR without reasonable accommodations.
- You see the ADA mentioned throughout this opinion, but this is a Rehabilitation Act case. The ADA and the Rehabilitation Act are very close in their statutory and regulatory provisions but are not identical (for example, two notable differences are in the area of causation and program accessibility). So, they get interpreted in the same way.
- When it comes to interactive process, courts vary on whether that is a separate cause of action. So, be sure to check your particular jurisdiction on that score.