This week’s blog entry considers the Society for Human Resource Management answer to the complaint of Fiona Torres in her case saying SHRM violated the ADA by not allowing her to have her service dog when it rescinded a conditional job offer. In the interest of full disclosure, many years ago I did speak to a SHRM conference in Rochester, Minnesota. I am also a member of SHRM as I like to keep up with what they say with respect to the ADA, though I am not active. I also do not have any SHRM certifications, though as readers know I have been in the labor and employment arena for decades (for example, 40% of my blog entries concern employment issues). Finally, I am not involved in this case. As usual, the blog entry is divided into categories and they are: the answer in Torres; and exploring SHRM’s  possible defenses in light of the answer.

 

I

Answer in Torres

 

  1. SHRM admits the case involves a Title I claim .
  2. SHRM admits that Torres represented she has Type I diabetes.
  3. Admits that a conditional job offer was made and that it was rescinded.
  4. Admits that Torres requested an accommodation upon accepting the conditional job offer to bring her service dog, which alerts her for diabetes, to work.
  5. Admits that Torres sent information on her service dog and a note from a healthcare provider to SHRM.
  6. SHRM advised Torres that the information she submitted did not appear to support that she required a service dog to perform the essential duties of the position and invited her to provide additional information, which she did do.
  7. SHRM admits that Torres told it that glucose monitors generally, and her glucose monitor specifically, were unable to accurately capture fast-moving trends leading to hypoglycemic episodes, and that she had not had a hypoglycemic episode necessitating medical assistance from paramedics since obtaining her service dog other than on one occasion.
  8. Admits that Torres sent SHRM email stating she relied on her service dog but that he was not always with her, such as when he was being groomed and when she believed the environment she was entering was unsafe for her service dog. Torres also stated in that email that when she was away from her service dog, there was a greater risk of a hypoglycemic episode.
  9. SHRM admits that Torres sent numerous notes from her health care provider regarding her service dog.
  10. SHRM admits that it did not communicate to Torres its concerns about her ability to control her service dog.
  11. SHRM admits that it did not communicate to Torres its concerns about the service dog being in the office for their service dog’s effect on other workers.
  12. SHRM offered multiple accommodations, including but not limited to: 1) use of her continuous glucose monitoring system at work; 2) breaks as needed to check her blood sugar levels; and 3) the ability to use her insulin pump and consume food or drink as needed at or near her workstation.
  13. SHRM admits that it was told by Torres that the glucose monitor she wore was insufficient and explained the reasons why it was insufficient by itself.
  14. SHRM admits that Torres told them that she may not have a glucose monitor for an unspecified number of days if her pharmacy had a delay in shipment or her insurance led to a delay in filing the prescription refills for the monitor.
  15. SHRM admits that Torres told them that if the monitor falls off, she needs to change it in order to avoid a two hour delay in reading. Also, if she does not keep a backup at work, she has to drive to the pharmacy, which she stated was incredibly dangerous.
  16. SHRM admits that Torres told them that approximately twice per year the monitor malfunctions or produces an error so that the glucose reading access goes down for two or more hours.
  17. While SHRM admits that it was told by Torres that she had type I diabetes, it doesn’t admit that she actually has it.
  18. SHRM admits that she was qualified for the position for which she applied and that a conditional job offer was extended and later rescinded.
  19. SHRM alleges several defenses, including undue hardship.

 

II

Exploring SHRM Possible Defenses In Light of the Answer

 

  1. While SHRM does not in fact acknowledge that Torres actually has Type I diabetes, it’s really hard to believe that whether Torres has this disability will be seriously contested.
  2. A person rejecting a reasonable accommodation is no longer qualified under the ADA. The question will be whether the accommodations offered by the SHRM were in fact reasonable. Just because accommodations are offered does not make them reasonable per se. A reasonable accommodation must be an effective accommodation, i.e gets a person with a disability to the same starting line as a person without a disability.
  3. Judging from the answer, SHRM may very well argue that it is the essential functions of the job being accommodated and not the disability. We have discussed that issue before, such as here.
  4. SHRM claims undue hardship on its operations. That may be a tough sell for a couple of reasons. It also opens up other problems. First, can a service animal really create an undue hardship, which is a very high standard, on the operations of a business? Second, undue hardship on its operations is just one of many factors to consider in 28 C.F.R. §1630.2(p). As a result, it opens up the SHRM to discovery as to its financial resources, which is another one of the factors to consider when assessing undue hardship.
  5. When a conditional job offer is rescinded, an employer has to show per 28 C.F.R. §1630.14(b)(3) that it was job related, consistent with business necessity, and no reasonable accommodations were possible in order to enable the person to perform the essential functions of their job. Whether something is job-related and consistent with business necessity is something that we have discussed many times before, such as here by way of example.
  6. SHRM could possibly argue that the dog was not a service dog because it wasn’t always under the control of the handler. The problem with this argument is that the EEOC has absolutely no regulations concerning animals in the workplace. Another problem is even if the DOJ regulation on animals but somehow persuasive authority in the employment context, Loper Bright will allow a court to use common sense with respect to the control piece (for example it is perfectly okay to still have a service animal if the animal is not with a person while it is being groomed for a person is going into a dangerous area pretty animal).
  7. SHRM may also argue that Torres and not SHRM blew up the interactive process (but see the discussion that an accommodation must be effective to be reasonable).
  8. Unclear what the likelihood of this case settling is.
  9. One wonders if Torres won’t argue that SHRM requested excessive documentation, which we discussed here.