Chronic tardiness covered under the ADA? Hey, it could happen

chronic tardiness & ADHD

You know that one irritating guy who’s late for everything? He could be asking for an ADA accommodation soon.  

According to a story from London’s Daily Mail, a man who has been late for everything in his life — from funerals to first dates — recently had his chronic tardiness diagnosed as a medical condition.

His penchant for lateness was diagnosed as a symptom of his Attention-Deficit Hyperactivity Disorder (ADHD) at a hospital in Dundee, Scotland.

Doctors there said the part of Jim Dunbar’s brain that’s involved in his ADHD also makes it difficult for him to judge how long it takes to do things — like get ready to go to work, apparently.

Dunbar said he didn’t mind his story being made public: ‘The reason I want it out in the open is that there has got to be other folk out there with it and they don’t realize that it’s not their fault.

‘I blamed it on myself and thought ‘Why can’t I be on time?’ I lost a lot of jobs. I can understand people’s reaction and why they don’t believe me.”

According to the Daily Mail story, some psychologists believe that chronic lateness could be a symptom of an underlying mood disorder such as depression, and many ADHD sufferers complain they struggle to keep time.

Just a minute …

The Mail did note some skepticism of Dunbar’s diagnosis among the medical community.

Dr. Sheri Jacobson, psychotherapist and director of Harley Therapy Clinic in London, told the newspaper:

The condition isn’t in the DSM5 (the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders) so I’m not sure you can really call it a condition …

Repeated lateness is usually a symptom of an underlying condition such as ADHD or depression but it can also just be habit.

I think making everyday human behavior into a medical condition is unwise.

We’d certainly agree with Dr. Jacobson. But ADHD can be a disability, correct? And getting to work on time could certainly fall into the category of major life activities.

So when will we see our first disability lawsuit from an employee who’s been axed for showing up late too many times?

The trendy new lawsuit employers are getting slapped with

Regardless of what you think of lawyers on a personal level, you’ve got to admit: They’re a clever bunch. When they see a legal tactic that works, they ride it until the wheels fall off. 

The new lawsuit du jour workers are slapping employers with: defamation.

The Recorder, a news outlet for tech-focused legal professionals, spoke to employment lawyers in the Silicon Valley area and found that plaintiffs are starting to frequently add defamation claims to their wrongful termination and discrimination lawsuits against employers.

Example: L. Julias Turman, a partner at the firm Smith Reed LLP, told The Recorder that at least 60% of his wrongful termination and harassment cases include defamation claims.

And here’s the kicker: Turman said defamation claims are being tacked on to lawsuits whether they’re appropriate or not.

Reason: They give plaintiffs another avenue for — and increase their chances of — recovering money.

Defamation defined

According to The Recorder’s report, the defamation claims being filed against employers involve an ex-employees accusing their bosses — i.e., management — of providing false reasons for firing them.

In other words, terminated employees are trying to recover money for what they claim are statements or accusations made by their former employers that hurt their names — or personal brands — to the point that it would be difficult for them to find future employment.

An example of how a defamation claim could easily be tacked on to a harassment or discrimination lawsuit: Say a worker is claiming that he was fired for discriminatory reasons because he’s African American. And say the employer has stated that its reasoning for terminating him is because he was constantly late for work.

The worker can tack a defamation claim onto his discrimination lawsuit by alleging that the statements about his punctuality were false and were actually used as a pretext for firing him.

The attorneys interviewed by The Recorder said that this was always a course of action plaintiffs could take, but there’s a heavier focus on it now.

And that’s because it’s working. In a recent case highlighted by The Recorder, a worker terminated by Kemper Independence Insurance Co. had his wrongful termination and retaliation claims thrown out of court, but the man still managed to win a five-plus million dollar judgement because of his defamation claims.

That’s the type of result that makes attorneys stand up, take notice and find ways to tack defamation on to future suits.

The defense for employers

The good news: Employers aren’t powerless to defeat these claims — as long as they’ve got their documentation in order.

One attorney, Christopher Whelan, of Christopher H. Whelan Inc., whom The Recorder said has been described as “a guru in the field” of defamation, said proving a defamation claim isn’t easy for plaintiffs.

All an employer has to do, according to Whelan, to defeat one is prove that the alleged defamatory statement is true.

In other words, if you say a worker was chronically late, all you’d need are time and attendance records to back up that statement.

Taking things one step further, this means that you need ask yourself if you can back up, with hard evidence, that what you’re about to say about an employee is true — especially when what you’re about to say could hurt the person’s future employment prospects.

Spread the word to your managers.

Telecommuting ruling not all it’s cracked up to be for employers

A district court just ruled Ford Motor Co. was right to deny a disabled employee’s ADA accommodation request to telecommute. But don’t pop any corks in celebration of the ruling that said “… regularly attending work on-site is essential to most jobs … “ just yet.

While the ruling certainly is good news to employers who fear being dragged into court for denying a disabled worker’s request to work from home under the ADA, it’s far from a green light to deny such requests.

In fact, all this case does with any certainty — despite the seemingly one-sided ruling — is show just how hard it is to prove that on-site attendance is an essential function of someone’s job, which is the case you’ll have to make in court to show a worker’s accommodation request to telecommute is unreasonable.
Issues with her request

To fully understand why this ruling isn’t all it’s cracked up to be, we have to go back to the beginning.

Jane Harris worked for Ford as a resale steel buyer. Her job was to act as the intermediary between steel suppliers and plants.

Harris also suffered from irritable bowel syndrome. Her symptoms caused her to repeatedly show up to work late, leave early and miss work entirely on many occasions. Her attendance issues got worse as time went on, and in the latter years of her employment, she consistently received low performance ratings and criticism.

Eventually, Harris claimed her condition made it impossible for her to drive or leave her desk without soiling herself. So she requested that she be allowed to work from home as many as four days per week.

Ford had a few problems with her request:

It said her job was “interactive,” in that it required her to have face-to-face contact with suppliers and plant officials to keep up relations — therefore, in-person attendance was an essential function of her job, the company claimed
Her job required computer work that couldn’t easily be completed remotely, and
She had already been granted the ability to work from home up to two days per week and her performance under that arrangement had been substandard.

So Ford denied her telecommuting request, and she was eventually terminated for performance issues.
EEOC sues

Harris took her case to the EEOC, which sued on her behalf, claiming Ford discriminated against her on the basis of her disability. The agency claimed Harris’ telecommuting request was reasonable and should’ve been granted.

Ford fought the suit and, originally, a district court sided with the automaker. It dismissed the EEOC’s case on summary judgment, ruling it shouldn’t go to trial.

But, on appeal, a three-judge panel of the Sixth Circuit court reversed the decision and said her case should go to trial. It said that as technology has advanced, so have remote work arrangements. As a result, the court said, “… attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location.“

This ruling sent shock waves through the employer community, as it seemed to suggest that telecommuting would be a reasonable accommodation under most work arrangements.
Court rehears case

Shortly after the appeals court ruling, the full panel of Sixth Circuit judges agreed to vacate the decision and rehear the case en banc (meaning, in front of all the judges of the court).

In an 8-5 decision, the panel sided with Ford and dismissed the EEOC’s case on summary judgment.

It said Ford acted reasonably in denying Harris’ telecommuting request. While it acknowledged that there have been great advancements in technology, which could make telecommuting easier, those advancements didn’t prove that Harris’ job could be performed at home.

It said Harris only provided “unsupported testimony” that she could perform her job at home, and that wasn’t enough to create the “genuine dispute of fact” needed to send a case to trial.

The court also acknowledged that Harris’ poor performance ratings under the two-day telecommuting arrangement helped support Ford’s case that she couldn’t perform her job remotely.

But perhaps the most compelling statement the court made is this:

“We do not write on a clean slate. Much ink has been spilled establishing a general rule that, with few exceptions, ‘an employee who does not come to work cannot perform any of his job functions, essential or otherwise.’ … And for good reason: ‘most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.’”

“That general rule — that regularly attending work on-site is essential to most jobs, especially the interactive ones — aligns with the text of the ADA.”

Hold the celebration

That certainly seems to be a powerful statement — one that suggests it’ll now be easier for employers to make the argument that on-site attendance is an essential function of most jobs.

But pump the brakes.

There are two things employers should be careful not to overlook about this case:

This was by no means a slam dunk victory for Ford. An appeals court did rule that the EEOC’s case should proceed to trial, before the court’s full panel of judges swooped in to save the employer — and even then five judges dissented letting Ford win summary judgment, and
The EEOC has, time after time, demonstrated it doesn’t consider itself bound to past court decisions like this one. Translation: If it feels you’ve wronged a disabled individual, and it believes it can milk some cash out of you and make an example of you, it’ll sue.

Bottom line: It appears no matter the circumstance, it’s still going to be hard to prove that in-person attendance is an essential function of any job. So it’s going to be tough to defend denying disabled individuals the ability to telecommute on those grounds.
Steps employers should take

So if you’re an employer in Ford’s shoes — and want to be able to deny a person’s request to telecommute — what should you do?

The best advice we’ve come across is from labor and employment law attorney Eric. B. Meyer of the firm Dilworth Paxon LLP.

In his blog, The Employer Handbook, Meyer suggests employers:

Make sure your written job descriptions spell out when attendance is an essential function. Then provide copies of those descriptions to employees when they’re hired — and perhaps get employees to sign off on them.
Make sure managers understand and abide by the job descriptions. If a manager starts to let telecommuting slide, it’s going to be hard to prove in-office attendance is an essential function.
Analyze all accommodation requests on their own merits. There’s no one-size-fits-all formula to treating employees’ accommodation requests. You’ve got to enter the interactive process for each request — and keep the dialogue open with employees — in an attempt to seek out reasonable accommodations.