Do You Know What Your Managers Are Saying to Job Applicants?

By Kathleen J. Jennings (kjj@wimlaw.com)

The EEOC announced this week that the owner-operator of a Georgia Dollar General store will pay $70,000 and provide other significant relief to settle a disability discrimination lawsuit filed by the EEOC. This claim arose out of comment that a supervisor made to an applicant for a job. According to the EEOC’s lawsuit, on or about Sept. 7, 2015, Terri Mosley applied for a sales associate position at a Portal, Ga., Dollar General store, where she was a frequent shopper. When Mosley appeared for an interview, the store manager refused to interview her, stating, “I didn’t know it was you,” and told Mosley that she could not work at Dollar General “with that arm.” Mosley’s left arm had been injured in an automobile accident two years earlier.

What did the manager do wrong? An employer cannot reject an applicant who has (or appears to have) a disability without making a determination as to whether the applicant can perform the essential duties of the job applied for, with or without reasonable accommodation. A hiring manager cannot simply rely on presumptions or stereotypes about what a disabled applicant can and cannot do.

The Americans With Disabilities Act (ADA) places strict limits on employers when it comes to asking job applicants to answer medical questions, take a medical exam, or identify a disability.

For example, an employer may not ask a job applicant to answer medical questions or take a medical exam before extending a job offer. An employer also may not ask job applicants if they have a disability (or about the nature of an obvious disability). An employer may ask job applicants whether they can perform the job and how they would perform the job, with or without a reasonable accommodation.

After a job is offered to an applicant, the law allows an employer to condition the job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same type of job have to answer the questions or take the exam.

Pro Tip: All managers that participate in the hiring process should be trained as to what they can ask applicants and how to lawfully handle disabled applicants. Ideally, there should be a company Human Resources professional available to provide guidance or answer questions about specific situations.

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

How To Undermine a Termination Decision With An Email

By Kathleen J. Jennings (kjj@wimlaw.com)

Today’s “email fail” comes to us from a group of physicians in Tennessee. (Babb v. Maryville Anesthesiologists , 6th Cir., No. 19-05148, 11/6/19). Paula Babb is a Certified Registered Nurse Anesthetist (“CRNA”) who had practiced anesthesiology for over a decade. In June 2015, Babb began working as a CRNA at Maryville Anesthesiologists, P.C. Babb also had a “degenerative retinal condition” that made it hard for her to read certain screens and medical records. She informed her bosses of her condition but assured them that it would not affect her ability to do her job. Her bosses were concerned. The head physician asked Babb if she had disability insurance.

Thereafter, Babb would ask other CRNAs and nurses for assistance in reading charts from time to time. Some of those folks reported these incidents back to the Babb’s bosses.

In January 2016, Babb was terminated due to two clinical errors that she was accused of making in October 2015 and January 2016. When communicating its termination decision to Babb, her employer focused exclusively on the clinical errors, and made no mention of Babb’s vision. So far, so good.

However, Babb never saw the termination coming because no one at the practice had criticized her anesthesiology techniques prior to her termination.

Even worse, after Babb was terminated, one of Babb’s fellow CRNAs sent out an email to all Maryville CRNAs that basically said that Babb was fired due her eyesight and “some other issues.” This email was written at the direction of one of the practice’s doctors (who later apparently tried to distance himself from it, unsuccessfully).

The District Court granted the employer’s motion for summary judgment, but the Sixth Circuit Court of Appeals reversed that decision. The Sixth Circuit found two particular fact disputes that precluded summary judgment.

First, there was a factual dispute as to the reasonableness of Maryville’s decision to base Babb’s termination on the two “clinical errors.” Babb had an expert witness who gave an opinion that Babb acted reasonably in the two incidents, which conflicted with the doctors’ assertion that Babb committed critical errors. It probably did not help matters that the doctors had not written Babb up for these or any other errors prior to terminating her.

Second, there was a factual dispute as to whether those clinical errors “actually motivated” Maryville to fire Babb. Here is where the Court pointed to the email sent just hours after Babb’s termination essentially stating that Maryville was firing Babb because of her impaired vision. Indeed, the Court stated that “If this kind of “smoking gun” evidence cannot get an employment discrimination plaintiff past summary judgment on the question of pretext, it is hard to imagine what could.”

The moral of this story? Never let an employee send out an email to your other employees discussing the reasons for a former employee’s termination. Moreover, managers and supervisors should not discuss the reasons for an employee’s termination with anyone who does not have an absolute need to know (such as your HR Manager).

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.