The United States Court of Appeals for the Fifth Circuit, which oversees Mississippi, Texas, and Louisiana, recently reaffirmed the requirements that to pursue a disability accommodation, an employee must actually ask for an accommodation, and that being awake is an essential job function. The court’s decision stemmed from a decision by an employer to fire an employee who was caught sleeping on the job.
The employee was a personnel manager for the employer. He was an insulin-dependent Type II diabetic and was provided two reasonable accommodations: an office refrigerator to store insulin and flexible scheduling for doctor’s appointments. He also requested, but the employer refused, an exception to its grooming policies requiring clean-shaven faces and tucked-in shirts because the employee did not show these requests were diabetes-related. The employee complained about the denial of these requests, but after further review, the employer did not change its position. Three months later the employee renewed his request to grow facial hair based on a doctor’s note due to skin conditions and was granted his request.
Among other duties, the employer trained the security guards and provided employees with guidance regarding the employer’s policies, including its “alertness policy.” The employer strictly enforced its “alertness policy,” regularly terminating employees for sleeping or appearing asleep at work when confirmed by a photograph and two witnesses.
Down the road, another employee reported to the employee’s manager that the employee was asleep at his desk. The manager went into his office, found him asleep, and took a picture of him. The manager then sent the picture and two employee statements to Human Resources. Not long thereafter, he woke up on his own accord and did not seem to be in any distress. Later that same day, the employee received a call from Human Resources and was told he was fired.
Following his termination, the employee filed suit, alleging violations of the Americans with Disabilities Act (“ADA”) and corresponding state laws, claiming discriminatory discharge, failure to accommodate, disability-based harassment, and discharge in retaliation for his complaint about denial of his grooming policy requests. The District Court gave the employer a victory and granted the employer’s motion for summary judgment regarding all of the employee’s claims, but the employee appealed.
Appellate Court’s decision
On appeal, the appellate court rejected the employee’s argument that his employer had a duty to determine if there was a medical cause for his being asleep before firing him, reasoning that the ADA does not protect an employee from discipline for misconduct, even when an impairment causes the misconduct. The appellate court determined that “an after-the-fact, retroactive exception to the alertness policy” is not a reasonable ADA accommodation. On this basis, the appellate court determined that the employer had no obligation to anticipate potential consequences of a disability because not only did the employee fail to set out a reasonable accommodation that would have allowed him to do his job, but he had not requested any accommodation related to falling asleep at work or lost consciousness at all.
The appellate court took the employee’s action of sleeping on the job one step further by holding that the employee was not qualified for his position at the time of his discharge because he could not perform his job duties while asleep; thus affirming the commonplace proposition that staying awake while on duty is an essential job function of almost any job.
Regarding the employee’s retaliation claim related to his alleged grooming needs, the appellate court noted that the mere fact that an employer disagrees with or seeks clarification from an employee about the reasonableness or necessity of a proposed accommodation is not actionable disability-based harassment. The appellate court noted that there was no evidence of inappropriate or harsh language used by the employer towards the employee to show any kind of disapproval towards disabilities.
Lastly, the appellate court discussed how an employee must show that an employer’s proffered legitimate, nondiscriminatory reason for termination of an employee was pretextual. Pretext is shown through evidence of disparate treatment or by showing that the employer’s explanation is false or unworthy of credibility. The appellate court emphasized that the manager’s reasonable belief that misconduct had occurred was more important than the ultimate accuracy of the reason. Here, the employee was terminated after multiple reports that he was asleep at work, and the proof of his misconduct was based upon the same standard that supported the termination of others who slept on the job. Additionally, the appellate court found that the manager’s belief that the employee was lying about the reasons he fell asleep, because the manager observed the employee wake up and he did not appear in distress, was reasonable.
This decision reaffirms multiple federal precedents that strongly support employers. First, except in exceedingly rare circumstances, being awake is an essential job function. As such, the ADA will not require employers to excuse performance of essential job functions. Second, unless the need for an accommodation is already known or obvious, it is the employee’s responsibility, not the employer’s, to ask for a job-related accommodation. If an employee asks for an accommodation, however, the employer is obligated to engage in the interactive process in good faith. Lastly, a manager’s reasonable belief that misconduct has occurred is more important than the ultimate accuracy of the reason. But still, the belief must be reasonable. Nonetheless, it is generally advisable to consult with experienced legal counsel before termination of an employee or in circumstances where an employee asks for an accommodation.
R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at firstname.lastname@example.org. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.