Employment Law and Common Sense

At LinkedIn, Sam's and my former colleague Tim Holly writes on the intersection between employment law and common sense.  For those without LinkedIn accounts, Tim has graciously permitted his post to be reprinted here:

The frameworks that apply in employment law cases can lead to well-reasoned but silly conclusions.  From time to time, a return to the basics (and common sense) is refreshing.  Check out this April 10, 2015, quote from the Sixth Circuit - finding against the EEOC's recent position regarding commuting as a reasonable accommodation of a disability:

A sometimes-forgotten guide likewise supports the general rule: common sense. Waggoner v. Olin Corp., 169 F.3d 481, 482–84 (7th Cir. 1999). Non-lawyers would readily understand that regular on-site attendance is required for interactive jobs. Perhaps they would view it as “the basic, most fundamental” “activity” of their job. Webster’s Third New International Dictionary 777, 920 (1986) (defining “essential” and “function”). But equipped with a 1400-or-so page record, standards of review, burdens of proof, and a seven-factor balancing test, the answer may seem more difficult. Better to follow the commonsense notion that non-judges (and, to be fair to judges, our sister circuits) hold: Regular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs, especially the interactive ones. That’s the same rule that case law from around the country, the statute’s language, its regulations, and the EEOC’s guidance all point toward. And it’s the controlling one here.

Some may disagree about the outcome in that case and whether the impact on the state of employment law is positive.  Regardless, at least secretly, surely everyone who deals with employment laws and regulations can agree that it is refreshing to see a case that strives for common sense. 

Unfortunately, employment law is not all just common sense.  Disability and family and medical leave laws can be particularly intricate.  

This brought to mind a deposition exchange some years ago between deposing counsel and the CEO of an employer accused of age discrimination and violations of the Americans with Disabilities Act:

Q: Are you aware of any training given to ... people that have authority to fire, at any of your [locations], specific to this discrimination issue?
A: I think in this day and age most people with any common sense understand this.  So - and right here in black and white I think it spells out pretty clearly what our policy is and I believe my managers understand that. Did we sit down in a classroom and go over it? No[.]
...
Q:Was there a formal mechanism in place for an employee to request an accommodation [for a recognized disability]?
A: I don't know what you mean.
...
Q: You indicated before that you and your managers have a common-sense understanding of the discrimination laws, is that a fair characterization?
A: Yes.
Q: So, what is your understanding of the company's responsibility when an employee requests an accommodation?
A: Of the company's reasonability? [Long pause].
Q: Under the law.
A: Well - under the law? To try and make some reasonable accommodations for that employee.
[Further questioning established that managers with no legal training were making determinations of what accommodations would be appropriate.
Q:Well, under what circumstances could [an employer] deny an accommodation [under the ADA]?
A: I'm not sure.

Needless to say, the case was resolved to the terminated employee's benefit.

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