In September, the EEOC filed lawsuits against two Texas employers – 151 Coffee in Fort Worth and Faben’s Pharmacy in El Paso County — for discrimination against employees who asked for reasonable COVID-19 accommodations at work. The employees had medical conditions that the employer had previously recognized as “qualifying disabilities” under the Americans with Disabilities Act (ADA). All were ready, willing, and able to work.
151 Coffee allegedly violated the ADA by refusing to allow two baristas to return to work until a COVID vaccine was developed. One had a heart condition and the other suffered from multiple sclerosis. They asked if they could avoid customer contact as much as possible when the stores reopened in the Spring of 2020. One had specifically asked not to work the drive-thru window. They were told they could not come back to work until there was a vaccine for COVID-19. The company ultimately terminated their employment.
Fabens Pharmacy refused to allow a pharmacy technician with asthma to wear a facemask. The employee was allegedly harassed, taunted, and humiliated for questioning the policy prohibiting masks and was sent home twice. He quit.
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Federal and Texas Workplace Disability Discrimination Laws
The federal Equal Employment Opportunity Commission (EEOC) has the principal responsibility for enforcing the ADA, under which both lawsuits were brought. Under the ADA, workplace discrimination may occur when an employee is terminated, suspended, denied training or a promotion, or anything else that negatively affects the terms and conditions of employment because the employee is disabled or needs a reasonable accommodation.
Texas Labor Code Chapter 21 also prohibits employers from discriminating against applicants or employees with disabilities in job applications, procedures, conditions, and privileges of employment. Chapter 21 applies to private employers with 15 or more employees and to all state government and local government entities no matter how many employees they have.
The Thorny Issue of “Reasonableness” in Disability Lawsuits
Although both the 151 Coffee and Faben’s Pharmacy lawsuits were brought under the ADA, it is noteworthy that the issue of whether a requested accommodation is “reasonable” is important under both Texas and federal employment law. That is the issue on which these cases often turn.
An employer need not grant an accommodation that would cause it “undue hardship.” “Undue hardship” is further construed to mean causing “significant difficulty or expense.” An employer may not reject any accommodation that costs money, but it may weigh the cost of an accommodation against its current budget and constraints created by the pandemic.
Even under those constraints, there may be a third way involving other no-cost or very low-cost accommodations. The question of reasonableness quickly becomes a fact-specific process of balancing equities. Negotiations are so specific that it is often hard to extract general principles from preceding lawsuits.
Employers are also required to engage with the employee in what the law describes as an “interactive process.” If it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee’s disability necessitates either the accommodation requested by the employee or any other. An employer may ask an employee:
- whether another form of accommodation could effectively address the health and safety concerns raised; and
- how a proposed accommodation will enable the employee to continue performing the fundamental job duties of the position (and whether those job duties are actually essential).
If the employer does not initiate this discussion, a court may infer that there was no real exploration of reasonableness.
It should be noted that fear of contracting COVID-19, by itself, without another condition that substantially limits one or more life activities, does not qualify as a disability. That was not, however, the situation with any of the plaintiffs in the 151 Coffee or Faben’s Pharmacy lawsuits.
The Ugly Facts of Harassment and Retaliation and Disability
In addition to requiring reasonable accommodation for disabled employees, the ADA also prohibits employers from retaliation against employees who request accommodation under the ADA. The EEOC defines retaliation as an adverse action against a covered individual because he or she seeks reasonable accommodation under the law.
Harassment, taunting and humiliation, as the Faben’s Pharmacy employee reported, falls into the catch-all category of “anything else that negatively affects the terms and conditions of employment.” It can be the most damaging aspect of employment discrimination, especially for someone already coping with a disability.
Legally speaking, disability harassment includes behavior of any kind that fosters a hostile environment that severely restricts an individual with a disability. Disability harassment covers a range of behavior. These include abusive jokes and crude name calling – think about middle school at its worst. But it also includes escalating incidents like threats and sexual and physical assault.
Retaliation is effectively the institutional embodiment of one-on-one harassment. Think about negative evaluations, demotions, hours cuts, denied promotions, terminations. It may be decorated in corporate language concerning priorities, productivity, and goals. Harassment and retaliation often go hand-in-hand.
The legal distinctions are sometimes less than useful in describing what has occurred. Nonetheless, workers are protected from both disability discrimination and the harassment and retaliation that sometimes follow from raising the issue.
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