July 1, 2002
Avoiding Lawsuits is a service of the employment law training and consulting firm of Counsel Consulting Group LLC and the law firm of Powell, Trachtman, Logan, Carrle & Lombardo, P.C.
CAN "HOW YA' DOIN'?" LEAD TO A LAWSUIT?
One of the major beer companies recently featured a television commercial in which a series of men greet each other with a vacant, "How ya' doin'?". "How ya' doin'?" is portrayed as something men say to each other when they really have nothing at all that they want to say - it is a ubiquitous, meaningless acknowledgment of another's presence, and no more.
Now, change the scene. An employee is walking down the hall of an office, displaying an obvious limp, barely able to walk. The boss is walking toward the employee. They pass, the boss points at the employee's condition, and asks, "How ya' doin'?".
Any problems? Can a simple "How ya doin'?" really have legal significance?
The Americans with Disabilities Act severely limits an employer's ability to make inquiries regarding an employee's (or, for that matter, a prospective employee's) disability. Basically, the ADA provides that an employer cannot pose disability-related inquiries to an employee unless the inquiries are "job-related and consistent with business necessity."
There are sound policy reasons underlying this requirement. Historically, many employers asked applicants and employees to provide information concerning their physical and/or mental condition in order to exclude such individuals from the employment pool, even if they could do the job. The ADA reflects congressional intent to protect the rights of applicants and employees to be assessed on merit alone, while at the same time attempting to protect the rights of employers to ensure that applicants and employees can perform the essential functions of their jobs.
But, as so often occurs when legislators attempt to cure societal ills through simplistic law making, the unintended, unforeseen and adverse consequences of a law often overwhelm and negate all of the good intentions that motivated the passage of the law in the first place. Although final judgment on the ADA is far from clear, it is undisputed that employers continue to have huge difficulties in translating its directives into daily business practice, often resulting in well-meaning employers being caught in an unforeseen web of legal hypertechnicalities. An excellent example involves employers who attempt to limit their disability-related inquiries - that is, their understandable need to inquire regarding the capabilities of their workers - to instances which are "job-related and consistent with business necessity." What does that mean? How do you find out if an injured employee is able to do his job?
And suppose you are just concerned about somebody's welfare, and want to know, "How ya doin'?"
Here is a suggested framework that can help limit potential liabilities in these situations.
First, ask yourself whether the inquiry you are about to make is, in fact, a "disability-related inquiry." If it is not, the ADA does not care about it.
What, you ask, is a "disability-related inquiry"? The EEOC has issued guidance on the topic and, in vintage government double-speak, tells us that a "disability-related inquiry" is a "question (or series of questions) that is likely to elicit information about a disability." As unhelpful as that definition may be, the EEOC does provide some useful examples of inquiries that are disability-related inquiries:
- Asking an employee whether he or she has or ever had a disability;
- Asking an employee about the nature or severity of a disability;
- Asking an employee to provide medical documentation regarding a disability;
- Asking an employee's co-worker, family member, doctor or another person about an employee's disability;
- Asking an employee about prior worker's compensation history;
- Asking an employee whether he or she is currently taking any prescription drugs or medications or has done so in the past;
- Asking an employee a broad question about potential impairments that is likely to elicit information about a disability (for example, "what physical restrictions or impairments do you have?").
Remember that you can ask an employee about impairments that do not amount to "disabilities" under the ADA since, by definition, such inquiries cannot be "disability-related." The definition of "disability" for ADA purposes involves anything that impairs a major life function in a substantial way. During its most recent term, the Supreme Court, in a very important ADA decision, made it clear that physical or mental impairments - even serious impairments like carpal tunnel syndrome - that do not impact major life functions are not "disabilities" under the ADA (see the January 1, 2002 issue of Avoiding Lawsuits.) It will be difficult for employers to interpret and apply the "disability" definition on the fly, but the point to remember is that not every broken arm or lacerated face or sprained ankle is a "disability" under the ADA.
What about the above example, involving the boss and an employee who pass in the hallway? If the employee wasn't limping and grimacing in pain, and the boss extended a simple, beer commercial "How ya' doin'?", no legal issues would be raised. But in the context where the employee is manifesting a potential disability, "How ya' doin'?" arguably becomes a question that asks whether the employee has a disability and how severe it is, and that you cannot do unless the inquiry is shown to be "job-related and consistent with business necessity." If the employee told the boss that he was really hurting, and the employee was terminated shortly thereafter, you can bet that the employee's lawyer/brother-in-law would attempt to transform your "How ya doin'?" into a searing disability inquisition by a sophisticated employer against a hapless employee.
This leads to the second issue - you can make disability-related inquiries, so long as they are "job-related and consistent with business necessity," When does a "disability-related inquiry" meet that criterion?
Generally, a "disability-related inquiry" will be deemed "job-related and consistent with business necessity" when an employer has a reasonable belief, based on objective evidence (i.e., not generalized assumptions or sterotypes about disabilities) that an employee's ability to perform an essential job function will be impaired by a medical condition, or that the employee will pose a direct threat to himself or others due to a medical condition. In other words, you can ask for information from the employee if you have a real question as to whether the employee can satisfy the central, most important demands of his or her job in light of the employee's medical condition. In addition, an employer may usually make disability-related inquiries to follow up on an employee's request for a reasonable accommodation.
This explanation is, like so much else about the ADA, pregnant with difficulties. Extensive discourses have been written on what does and does not constitute an "essential job function," when a disability causes an employee to pose a direct threat, and what constitutes a request for a "reasonable accommodation." Our training sessions focus on teaching managers how to deal with the practicalities of these situations in the real world. For now, the most important thing for employers to understand is this:
- If you have a solid basis to believe that a medical condition (which, by the way, can include emotional or other mental conditions) will likely compromise an employee's ability to perform an essential job function, or will cause a safety issue, you can make inquiries regarding the nature of the disability and how it impacts the employee...
- But, you must limit your inquiries to topics relating to the employee's ability to perform the most important aspects of his or her job - nothing else. Going outside those parameters could lead to trouble.
With that in mind, back to our example. If the employee walking down the hallway is a telephone operator who does not have to use his legs as part of his job, it may not be reasonable for you to be making disability-related inquiries. The inquiries would not be job related, and would not arise out of business necessity. If, however, he is a forklift operator, "How ya doin'?" and a lot more would be completely appropriate.
It is, of course, a vast overstatement to portray the ADA as a statute that virtually criminalizes meaningless social discourse and greetings - "How ya' doin'?", "How's it going?" and "How are you feeling today?" generally remain harmless banter. In the right context, and with a bit of a stretch, the ADA could reach that far, but the important point of this exercise is to show how dangerous letting your guard down can be in this area of law. Although "How ya doin'?", by itself, might not trigger an ADA lawsuit , if the employee stops and tells you how he or she is doing, followed by some extended water cooler conversation on the subject, your inquiries, however well meaning and innocent, may lead you down a very unpleasant path.
Again, this whole topic brings into bold relief the importance of management training. Employers can still protect themselves to a reasonable extent, if they follow certain protocols and exercise certain cautions, most of which require them to change behavior patterns, and weave what will seem to be unnatural and strange into the fabric of their everyday business dealings. The same holds true for a litany of other, related topics, such as:
- When can you require a medical examination?
- What do you do, and what questions can you ask, when an employee asks for a specific accommodation you think is unwarranted?
- Are your permitted to gather information from third parties in regards to a disabled employee's condition?
- What do you do when an employee with a disability applies for a different job in the company?
- What are your rights to monitor the prescription medications employees are taking?
- What do you do if an employee refuses to answer your questions about his or her condition?
- What do you do if an employee who has been disabled claims that the disability has now been resolved, but you don't believe it?
We train managers and executives to deal with these issues on a daily basis, and help companies establish forms, manuals and procedures that avoid the monumental legal implications of getting it wrong. Let us know if you need any assistance.
Powell, Trachtman, Logan, Carrle & Lombardo, P.C. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.
