Locke Lord QuickStudy: The First Circuit Sends an ADA Warning ‎to Employers

Locke Lord LLP
September 22, 2021

On September 15, the United States Court of Appeals for the First Circuit issued a startling and ‎ominous opinion construing the Americans with Disabilities Act (ADA) in a manner which ‎employers should take heed. In a 38-page opinion in the case of Benson v. Wal-Mart Stores East, ‎L.P., the Court addressed a seemingly insignificant controversy by adding twists to the ‎commonly understood proof aspects of the ADA that should send shivers down employers’ ‎spines.‎

Margaret Benson worked for Wal-Mart as a People Greeter, i.e. an employee who welcomed ‎customers, provided “front-end security,” ensured “customer safety in the greeting area,”  ‎‎“respond[ed] to electronic surveillance alarms,” and provided direction to customers. Apparently, ‎Ms. Benson suffered a job related injury for which she received workers’ compensation benefits ‎and which, she asserted, resulted in her frequent absences from work for treatment and as a result ‎of adverse reactions to prescribed medications.‎

Wal-Mart terminated her employment due to excessive absences. In most circumstances, ‎unexcused absences or tardiness from work prove sufficient for an employer to terminate an ‎employee. For example, the Appeals Court cited Colon-Fontanez v. Municipality of San Juan, ‎‎660 F.3d, 17, 33 (1st Cir. 2011) for the proposition that “regular attendance ‘is an essential ‎function of any job’ and EEOC v. Ford Motor Co., 783 F.3d 753, 761 (6th Cir. 2016) for the ‎proposition that the ‘general rule - that regularly attending work on-site is essential to most jobs, ‎especially the interactive ones - aligns with the text of the ADA.’‎

Moreover, the Court recognized that to proceed with a case a plaintiff must first establish a ‎prima case of disability discrimination by satisfying several criteria, including that she is ‎‎“qualified, with or without reasonable accommodation, to perform the essential functions of her ‎job. . .” ‎

However, while reciting well-settled concepts of ADA parameters, the Court of Appeals ‎reversed the District Court’s entry of summary judgment for Wal-Mart. So, while one would ‎think that attendance is an  “essential” to the job of People Greeter, the Court reasoned that ‎whether a function is essential turns on factors such as (a) whether or not “the written ‎requirements or description of the job” include such a requirement and (b) “the consequences of ‎not requiring the function.” So while the Court, on the one hand, acknowledged it is “not tasked ‎with second guessing an employer’s legitimate business judgment about what is required of its ‎employees,” it indicated, on the other hand, that trial courts should inquire “whether the ‎employer actually enforces this requirement of its employees or merely pays lip service” to it. In ‎other words, the Court was advising lower courts to examine the exact terms of job descriptions ‎and the consequences of absences to ascertain whether attendance is an essential function of a ‎job and whether an employee is seeking a reasonable accommodation for tardiness.‎

The Court recognized that “[t]he ADA requires an employer ‘to make a reasonable ‎accommodation…, unless [the employer] can demonstrate that the accommodation would impose ‎an undue hardship on [its] operation of the business,” Moreover, it viewed Benson’s explanations ‎for her tardiness as a request for a “modified work schedule” and it indicated that  Wal-Mart’s ‎‎“own Attendance policy” backfired on it as it “explicitly” considered “any missed time due to a ‎‎‘reasonable accommodation’ to be permitted . . .”‎

Adding more food for thought to the diet of employers in Massachusetts, New Hampshire, ‎Maine, Rhode Island and Puerto Rico, the Court turned to Benson’s retaliation claims and ‎reversed the District Court’s summary judgment on that count as well. In that regard, it relied ‎heavily on the proximity in time for Benson’s internal complaint of harassment and request for a ‎modified schedule and the timing of the termination of her employment. It opined: “On its own, ‎the temporal proximity between the January email [complaining of harassment] and ‎accommodation request and Benson’s February 18 termination is sufficient to make out a prima ‎facie case, but the inference is even stronger alongside [her HR Manager’s] complete inaction in ‎response to Benson’s harassment claim.‎

So what are the lessons of Benson v. Wal-Mart Stores, L. P. when it comes to the ADA?  ‎

  1. ‎Make sure job descriptions align with company requirements and personnel decisions.‎

  2. ‎Consider the consequences of what the company deems an “essential function” of an employee’s job.
  3. ‎Review, and amend if appropriate, policies for consistencies and alignment with personnel actions.‎

  4. ‎Do not forget that proximity between a complaint and an employment action can create a treacherous slope.‎

  5. ‎Remember to be vigilant about receiving and responding to complaints of ‎discrimination and/or ‎harassment.