ADA Compliance Requires Careful Juggling
What’s the basic issue in Duda v. Board of Education of Franklin Park Public School District?
Duda is a classic case of the delicate juggling of the risk of workplace violence on one hand and on the other, psychiatric disability discrimination claims. [The plaintiff] was a janitor in a junior high school and was diagnosed with bipolar disorder by a psychiatrist; he was a recovering alcoholic on medication for the depressive condition. On work breaks, when he felt anxious or depressed, he’d write his thoughts in his diary. One night co-workers read the diary and reported to their supervisor that it contained a death threat against his supervisor. The school [officials] put him on leave and said when he got a clean bill of health from his doctor they’d reconsider his status. His psychiatrist said he was fine, and independent psychiatric evaluations required by the school district also said he was stable and not a danger to anyone.
What happened then?
The district [officials] said he could come back to work under these conditions: He must continue participating in Alcoholics Anonymous, and continue psychiatric counseling and taking his medication. And—here’s where the [grievance] came in—he’d be transferred to a school where he wouldn’t work with other people, and he could forget about applying for a bus-driver position, which he wanted to apply for. So he filed suit claiming that the school district had segregated him on the basis of his psychiatric disability and that the denial of an opportunity to apply for a promotion to bus driver was discriminatory.
How was the case ruled?
The district court threw out the case; it found no violation of the ADA. The 7th Circuit Court of Appeals this January reversed the decision and said that he was entitled to a trial under the claims that he was segregated and disqualified from applying to be a bus driver. But the [wording] of the decision was telling: The court basically apologized for having to remand this for a trial and suggested the district may have another bite at proving the conditions [required for reinstatement] were appropriate.
What does the ruling mean for employers?
It means that prudent management responses to a very difficult workplace situation can still leave [employers] faced with a trial. The decision [the court of appeals made] was almost required by the broad language of the ADA. I’m not sure it’s going to be easy for employers to get rid of a case like this on an early motion to dismiss.
What’s the likely scenario for employers then?
It’s more likely they’ll have to develop a factual record, and then move for summary judgment—which means there will be a deposition and statements from psychiatrists to show [an employee] does present a direct threat and that steps taken by management to deal with potential threats were entirely proper and prudent.
Is there any other advice on the issue?
In spring of last year, the Equal Employment Opportunity Commission (EEOC) issued psychiatric disability guidelines—suggestions regarding what kinds of situations are covered by the ADA. The decision makes clear that the EEOC’s interpretive guidelines, while not controlling on the courts, are a body of expertise which courts will defer to. So it suggests that employers should be very familiar with them.
In general, is it better to guard against workplace violence, even if it means possible problems with the ADA?
If management knew [an employee] was under psychiatric care, knew the employee was potentially violent yet didn’t take steps to protect [other employees and customers], and if violence does occur, there’s an enormous liability. An employer is well advised to err on the side of making a workplace safe.
Can you explain the Kralik v. Pennsylvania Turnpike Commission case?
An employee who has a disability wants to be reasonably accommodated, and that accommodation would require the employer to violate terms of a collective bargaining agreement. In this case, a toll collector suffered a back injury unrelated to work. She said that a reasonable accommodation would be to be [relieved] from forced overtime—under the local Teamsters union contract, if a [senior] employee doesn’t want to do overtime, then less-senior employees can be forced to take the overtime assignment. She said she wanted to be relieved from forced overtime, because she couldn’t work more than eight hours at a time due to her injury, [according to] her doctor. The turnpike commission [officials] said that would directly impact the rights of other employees with greater seniority, and the commission would face a grievance by the union for violating the contract. So it would be an undue hardship—and accommodation isn’t required if it means undue hardship.
What happened then?
The district court [agreed with the commission], and ruled that accommodation couldn’t be required under the ADA. The 3rd Circuit Court of Appeals agreed. The issue still sticks in the craw of the EEOC, which has taken the position that if an accommodation would impact conditions of a collective bargaining agreement, then the employer should go to the union and ask the union to change the contract—which is incredibly naive and unrealistic.
What is the trend, then, for resolving issues of overlapping jurisdiction between the ADA and unions?
Now we have this case, and there’s a building area of case law that has developed a sort of rule: If an accommodation under the ADA conflicts with terms of a collective bargaining agreement, it is per se an undue hardship and therefore can’t be required. But the EEOC persists in its position.
What are the lessons for employers handling this issue?
Unionized employers [might want to] negotiate provisions in their collective bargaining agreements that say in the event a request for accommodation made by a union employee conflicts with provisions in the agreement, management and the union will make their best efforts to resolve the issue through mutual negotiation.
Is there anything else employers should keep in mind in order to respond appropriately?
The second lesson is if an employer gets hit with a situation like this, one tactical move is to immediately notify the union that a request has been made and tell the [leaders] it’s up to them to resolve this. Then when the EEOC asks the employer what has been done to make an accommodation, the employer can say it’s the union’s problem—and sic the government authorities on the union, because in most of these cases, the employer is willing to make the accommodation if the union goes along.
Workforce, April 1998, Vol. 77, No. 4, pp. 107-111.