A discrimination lawyer, in the case of Gosby v. Apache Industrial Services Inc., convinced the Fifth Circuit Court of Appeals to reverse and remand a decision of a lower court, the Eastern District Court of Texas, that had awarded summary judgment to an employer in a lawsuit under the Americans with Disabilities Act (ADA). The District Court had found that the employee failed to establish that her inclusion in a reduction-in-force (RIF) was the result of prohibited discrimination based on disability. The Fifth Circuit’s decision in this case revisits the difficult question of what evidence is enough to show causation. Is the fact that her employment was terminated just days after an incident that highlighted her diabetic condition sufficient to make a prima facie case of discrimination under the ADA?
This is an issue that has troubled Circuit Courts (and those who allege discrimination) since the U.S. Supreme Court’s 2000 decision in Clark County School District v. Breeden. Perhaps the takeaway from Gosby is that there is still no bright line. The constellation of facts in each situation still makes all the difference in a discrimination argument involving an unjust termination.
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Facts Matter. Facts May Be Complicated in a Discrimination Case
A discrimination case is rarely clear cut because small and large workplaces are complex societies with lots of crackling and conflicting crosscurrents. The motives for any given employment action may be very mixed. In the Gosby case, Arlicia Gosby had taken a temporary position that was not expected to last beyond six months. Her job involved assembling and disassembling scaffolding. She has diabetes, which is covered as a potentially disabling condition under the ADA. The employer knew about her condition because it was disclosed during a pre-employment exam. The examiner recommended that she not do tasks that involved climbing. It is not clear whether this limitation was ever implemented.
At one point, when Gosby jammed a finger, a co-worker warned her not to visit the worksite medical tent because she would be laid off as a risk. The co-worker was not, however, involved in the decision to terminate her employment. Thereafter, she had a medical incident related to her diabetes. She visited the medical tent and was sent home for the day. She was medically cleared to return to work the next workday, which she did. That day, however, the crew was sent home early for lack of work.
Two workdays later, her employment was terminated as part of a pre-planned RIF. It was far short of the anticipated six-month limit to her job. Although the workers who were laid off were evaluated according to a multi-factor scale, the workers who were retained were not. Gosby sued the company under the ADA, alleging that her inclusion in the RIF was an adverse employment action based on her disability. But for her visit to the medical tent, she asserted, it would not have happened.
Disability Discrimination Law is Complicated
The ADA and Chapter 21 of the Texas Labor Code prohibit employers from discriminating against applicants or employees with disabilities in job application, procedures, conditions, and privileges of employment. Disability discrimination may occur when an employee is terminated, suspended, denied training, denied promotion, or anything else that negatively affects the terms and conditions of employment because the employee is disabled or needs a reasonable accommodation. The process that workers must go through to pursue a disability discrimination claim is set out in the 1973 Supreme Court decision in a case known as McDonnell Douglass v. Green. It has three basic steps.
Step One of a Disability Discrimination Case
First, the plaintiff must make a prima facie case (based on first impression, presumed to be true unless proven otherwise) of prohibited discrimination. This first step involves three issues. The employee must show that he or she:
- is disabled within the meaning of the ADA;
- can perform the essential functions of the job with or without reasonable accommodation; and
- suffered an adverse employment action as a result of discrimination based on the disability.
Returning to the disability case at hand, the first two requirements above were easy to meet. Yes, Gosby had diabetes, which is a condition covered by the ADA, and her employer knew about it. There was no evidence to indicate that she could not perform the essential functions of the job. Yes, the termination of her employment was an adverse employment action. The causation element is thorny though, as is often in an ADA case.
Typically, if an employee cannot satisfy all three elements, the lawsuit is tossed out of court on a summary judgment motion. That is what the Eastern District Court of Texas did, finding the claimant had failed to show that the reason for her termination was her disability. The short timeframe between her diabetic incident and the termination of her job did not, by itself, demonstrate causation.
Step Two of a Disability Discrimination Case
If and only if the lawsuit survives step one, step two offers the employer the opportunity to show that there was a nondiscriminatory reason for the adverse employment action. It might be lack of work, poor performance, preplanned reduction, etc. At-will employment is the rule of thumb in Texas, as it is throughout much of the country. That means that workers can be fired for good, bad, or no reason. This basic rule applies unless the reason runs afoul of contract protections or certain limited federal or state law protections against discrimination. These protections include those outlined in the ADA. We must realize that this may be less a matter for the court system and more for the legislative branch of government which establishes the legal guidelines of new laws.
Step Three of a Disability Discrimination Case
The employee will have the opportunity to demonstrate that the employer’s explanation is a mere pretext. It might be a convenient lie to cover up the real reason. It might be semi-true, but unequally applied. In this case, the Fifth Circuit Court focused particularly on the fact that the criteria for evaluating which workers should be laid off and which should be retained did not seem to have been universally applied. The checklist appeared to have been used only to evaluate whether dismissed workers should be dismissed.
What the Lawyers Did in this Case
Although an intellectual examination of these three steps of showing how employment discrimination looks good on paper, this is not always the way people and courts make decisions. The Fifth Circuit court clearly thought that both the employer’s argument about a pre-planned RIF and the employee’s evidence of her co-worker’s warning about visiting the medical tent, as well as the timing, deserved more exploration.
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