2021
- Denial of Work-From-Home Requests: A New Era of Discrimination?
- April Showers Bring
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- Can Employees Be Forced to Get the Covid-19 Vaccination?
2020
- Holidays...To Pay or Not to Pay, What is Required
- EEOC Update on COVID-19
- Protection of Employee Health Information
- Civil Rights Win for LGBTQ Employees
- OSHA Recordkeeping Requirements During the COVID-19 Pandemic
- The Line Between At-Will Termination and Wrongful Termination
- Regulating Firearms in the Workplace
- Social Media Use in Hiring
2019
2018
- What Not to Wear
- Vicarious Liability for Unlawful Harrassment
- Employee Surveillance & Union Formation
- A Lesson in Retaliation
- Employers May Sometimes Judge a Book By Its Cover
- Mind Your P’s and Q’s . . . and BFOQs
- Severance Agreements
- U.S. Department of Labor "Paid" Program
- Revisiting Records Retention
- Calculating the Regular Rate
- Independent Contractor or Employee?
2017
- Sexual Orientation Discrimination
- DRI Membership: It’s Personal
- Is Extended Leave a Reasonable Accommodation?
- Parental Leave
- Pay Disparity
- Religious accomodation in the workplace
- 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
2016
- 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?
2015
- "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
- Pregnancy in the workplace
- Let's talk about honesty.
- "Did You Know" Series - Part I
- Conducting an Internal Investigation
- What HR can look forward to in 2015!
2014
- The chokehold of workplace technology
- Does your company have trade secrets?
- North Dakota Construction Law Compendium for 2014
- Does the North Dakota baby boom affect you?
- Ban the Box? Why?
- The end of the world as we know it
- Everybody has an opinion
- Changes, Changes, Changes!
- Nick Grant presents at North Dakota Safety Council's 41st Annual Safety and Health Conference
- Email impairment: A potentially harmful condition
Jan 06, 2017
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.
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.
So, what can employers do to prepare? The following steps may be helpful:
Reprinted with permission from an article submitted for publication in the January, 2017 Southwest Area Human Resource Association newsletter.
Mixed Motive Causation
By: Allison MannIn 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. Medtronic
In 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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My law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email me at amann@ndlaw.com. We promise to take your comments and ideas to heart.Disclaimers
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Reprinted with permission from an article submitted for publication in the January, 2017 Southwest Area Human Resource Association newsletter.