- Sexual Orientation Discrimination
- Is Extended Leave a Reasonable Accommodation?
- Parental Leave
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- Equal pay and prior salary information
- I quit! How to avoid constructive discharge
- You Can't Shred Email
- Navigating Unemployment Claims
- Considering Criminal History in Pre-Employment Decisions
- Defamation Claims from Former Employees
- Mixed Motive Causation
- Requesting Accomodation: Kowitz v. Trinity Health
- Antitrust Law in Human Resources
- An Evolving Standard: Joint-Employment
- What Does At-Will Employment Mean for Employers?
- Let's Talk About Wages
- THE FLSA: CHANGES ARE COMING
- Follow Up: Obesity and the ADA
- The Importance of Social Media Policies
- Is Obesity a Qualifying Disability under the ADA?
- Retaliation on the Rise: The EEOC Responds
- What Motivates You?
- "But I thought ...
- Who’s expecting? And what is he expecting?
- Are You Still Doing Annual Performance Reviews?
- Who is Your Employee?
- The unpaid intern trap Part II
- “We’ve been the victim of a cyber-attack”
- So, a Hasidic Jew, a nun in a habit and a woman wearing a headscarf walk into your office?
- The unpaid intern trap
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- Let's talk about honesty.
- "Did You Know" Series - Part I
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- What HR can look forward to in 2015!
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- North Dakota Construction Law Compendium for 2014
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- Ban the Box? Why?
- The end of the world as we know it
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- Nick Grant presents at North Dakota Safety Council's 41st Annual Safety and Health Conference
- Email impairment: A potentially harmful condition
- Are Employers Required to Give Stressed-Out Employees Time Off?
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- Should Your Employees Telecommute? Part III
- Should Your Employees Telecommute? Part II
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- Proper Investigation of Employee Misconduct
- Battles in the Wellness War
- Rules are rules! Aren’t they?
- What's going on in Bismarck
- A glimpse ahead
- Obesity as a disability under the ADA – reweighing the issue
- What’s next for your business under the Affordable Care Act?
- Criminal Background Checks
- Becoming a lawyer is a process, not an event [Section 5 of 5]
- Congress Says Yes To North Slope Energy Jobs Bill
- Test Your Knowledge of Social Media Policies and Employee Discipline
- Becoming a lawyer is a process, not an event [Section 4 of 5]
- What Every Employer Needs to Know About the NLRA
- Will the 2012 Elections Make A Difference
- Where There's Smoke...
- Dress Code Etiquette: Is Casual Friday Becoming Freaky Friday
- The Next Disaster May Be Yours
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- Do You Recognize a Cat's Paw When You See One?
- Cell Phones Can Cost a Lot, Part II
- Becoming a lawyer is a process, not an event [Section 3 of 5]
- Cell Phones Can Cost a Lot, Part I
- The Economy - What HR Professionals Need To Know
- Becoming a lawyer is a process, not an event [Section 2 of 5]
- Three New Challenges For HR Professionals
Mixed Motive CausationBy: Allison Mann
In December 2016, the Eighth Circuit scrutinized its standard for proving causation in cases of disability discrimination, in the case of Oehmke v. Medtronic. Causation means that the plaintiff must be able to show that the defendant discriminated against them because of the plaintiff’s disability.
There are two main causation tests, and as of right now, there is a split in the circuits as to which test should be applied.
First, there is the “but-for” causation analysis. To put it simply, the plaintiff would not have been terminated but-for her disability. This is a high burden for the plaintiff to meet, and has been adopted in the Fourth, Sixth, and Seventh Circuits.
Second, is “mixed-motive” causation. This test is more relaxed. Courts that use this test recognize that employers oftentimes terminate individuals for multiple reasons. Some of which are permissible, and others that are illegal. Here, the plaintiff does not need to show that the only reason that she was terminated was her disability. She needs only show that it was one of the reasons. This is the test used by the Eighth Circuit.
It is helpful to examine the facts of Oehmke to better understand this distinction.
Oehmke v. MedtronicIn Oehmke, Plaintiff worked for Defendant as a credit representative. She also suffered from immune deficiency related to cancer treatment. The facts of the case are quite lengthy, but can be summarized quickly.
Plaintiff worked in customer service answering phones. Her disability caused her to be absent from work fairly often, but Defendant allowed Plaintiff to telecommute. Plaintiff did not get along with her supervisors, and was oftentimes in conflict with them. In many ways, Plaintiff was a proficient employee, and even won several awards for service. However, her performance declined. Several customer complaints were filed against Plaintiff, and she received negative evaluations from her supervisors. At one time, she even gave life threatening advice to a customer.
The main issue arose when Plaintiff exhausted her FMLA leave. Due to press of business, Defendant replaced Plaintiff with a new employee. Defendant offered Plaintiff a different position, which was a demotion from the prior one. Plaintiff accepted.
Plaintiff was not happy in this new position. In the time that followed, renewed conflict with her supervisors arose, Plaintiff was absent from work because of her illness, and Plaintiff was not able to meet the requirements of her new job. Plaintiff was put on a performance improvement plan, but refused to sign it. She instead asked for a transfer to another department. At that time, Defendant asked Plaintiff to resign, and offered her a settlement. Plaintiff refused and was ultimately terminated.
Plaintiff then brought suit for disability discrimination. At the district court level, Defendant was granted summary judgment, from which Plaintiff appealed.
The Court started by calling out the test it would use to evaluate the situation—the mixed-motive analysis. It then recognized that there were multiple permissible reasons to terminate Plaintiff. A court using the “but-for” analysis test may have stopped at this stage of the analysis. However, the mixed-motive analysis does not end there. The Court allowed Plaintiff to attempt to show Defendant also had a discriminatory reason for Plaintiff’s termination.
Plaintiff argued that Defendant was also motivated by Plaintiff’s need to be absent from work. Plaintiff further argued that her absences were caused by her disability. Ultimately, the Court upheld summary judgment in favor of the Defendant because Plaintiff could not present medical evidence to show that her absence from work was related to her disability. Thus, even if Defendant terminated Plaintiff because she was oftentimes absent from work, it was not discriminatory.
The Takeaway:Employers in the Eighth Circuit should be aware of Oehmke because it allows potential plaintiffs to prove discrimination using a less stringent test. In theory, it is easier to provide discrimination using this analysis.
So, what can employers do to prepare? The following steps may be helpful:
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(Otherwise known as “the fine print”)
Reprinted with permission from an article submitted for publication in the January, 2017 Southwest Area Human Resource Association newsletter.