Settlement Agreement: Downers Grove Tattoo Company
Missouri Supreme Court Narrowly Construes MHRA And Decides That A Request For Accommodation Does Not Constitute Protected Activity
Key Points
- To assert a claim of discrimination based on retaliation under the Missouri Human Rights Act (MHRA) an employee must engage in a protected activity in which the employee opposes a practice prohibited under the MHRA or participates in the pursuit of protections under the MHRA.
- The act of requesting an accommodation does not constitute protected activity and is insufficient by itself to support a claim of retaliation under the MHRA.
On January 14, 2020, in the decision Lin v. Matthew J. Ellis and Washington University in St. Louis, the Missouri Supreme Court, sitting en banc, issued a unanimous opinion in a case of first impression, holding that a request for a disability accommodation does not constitute protected activity and is insufficient, by itself, to support a claim of retaliation under the MHRA. The decision is significant because it departs from federal case law, including Eighth Circuit decisions, which interpret analogous language in the Americans with Disabilities Act (ADA) to support a retaliation claim.
Brief facts giving rise to claim of retaliation
Dr. Lin (Lin), a university research scientist who worked in a lab at Washington University (University) requested and received accommodations for a physical disability that prevented her from performing routine duties related to her position. She was later terminated from her position when the grant funding for her position expired.
A request for accommodation is not protected activity under the MHRA
Section 223.070.1(2) of the MHRA provides:
It shall be unlawful discriminatory practice for an employer . . . to retaliate or discriminate against any other person because such person has opposed any practice prohibited by the chapter or because such person filed a complaint, testified, assisted or participated in any manner in any investigation, proceeding, or hearing conducted pursuant to this chapter.
The Missouri Supreme Court recognized that the plain language of §223.070.1(2) of the MHRA provides a cause of action for an individual who suffers retaliation because they have either opposed an unlawful discriminatory practice or participated in the procedures available to claimants alleging discrimination under the MHRA. The Court also reviewed federal court decisions which interpreted substantially similar language in the ADA and which consistently found that a request for accommodation is protected activity that supports a claim for retaliation under the ADA. Many of those same federal courts, however, also recognized that the plain language of the ADA did not support such an interpretation but based their decisions on inferred Congressional intent.
In construing Missouri law, however, the Court declared that they were not bound by federal law that was inconsistent with the plain meaning of the state statute as enacted by the Missouri legislature. Instead, the Court determined that a “mere request for accommodation” does not fall within the “opposition or participation clauses of section 213.070.1(2)” and the Court refused to “read into a statute” such legislative intent. As a result, the Court held that a request for accommodation cannot support a claim for retaliation, and that Lin failed to state a claim for relief under the MHRA.
Although Lin had argued before the Court that her repeated requests for accommodation demonstrated her opposition to the University’s alleged violation of her rights under the MHRA, the Court dismissed this argument noting that Lin had failed to assert such allegations in her pleadings and also had received accommodations for her disability pursuant to her requests until termination.
What this means to you
This decision represents a significant difference in the interpretation of Missouri’s discrimination law and federal discrimination law. Individuals who claim retaliation under the MHRA must factually support their petition with allegations that the retaliation was due to their opposition to an unlawful practice or their participation in a matter brought under the MHRA. Simply requesting an accommodation, by itself, is insufficient to support a claim of retaliation under the language of the MHRA. It is conceivable, however that a request for accommodation could be evidence of retaliation if it is alleged together with other conduct that would support a claim of retaliation under Missouri law. Additionally, individuals may continue to assert a claim of retaliatory discharge based solely on a request for accommodation under the ADA, a federal law.
Health Care - The Growing Risk of Disability Litigation
Federal agencies and private plaintiffs are increasingly focused on disability issues with businesses—and that could have a broader ripple effect across health care and other industries.
“As cultural attitudes and norms have evolved to more accurately, and rightfully, view individuals with disabilities as fully enfranchised members of society, the litigation landscape has evolved as well,” says Brian McGovern, a partner at Crowell & Moring in New York. “Increasingly, individuals with disabilities and the government agencies charged with enforcement of disability laws have sued in federal courts to vindicate alleged violations.”
The number of disability lawsuits against businesses has been growing for a decade or more. Plaintiffs have brought Americans with Disabilities Act suits on many fronts, from inadequate wheelchair access at offices to a lack of sign-language interpreters for hearing-impaired children. Some suits have claimed that websites are essentially places of business that fail to accommodate those with hearing or vision problems—an argument that is likely to continue, since the Supreme Court in June 2019 declined to hear a case that could have clarified requirements for online access. And in many cases, plaintiffs have employed “drive-by lawsuits,” a dubious tactic in which plaintiffs’ attorneys look at photographs and aerial views of businesses—often small local operations—to find ADA violations.
These trends are now playing out in segments of the health care industry. Recently, there has been increased discrimination litigation targeting medical and senior living communities for allegedly failing to accommodate a resident’s or a patient’s disability. There are various laws against discriminating against the disabled, but “chief among the arsenal of statutes invoked by disabled and government litigants is the ADA,” says McGovern. He notes that the ADA’s reach extends beyond employment discrimination to the provision of services and amenities offered by “public accommodations,” which can include such living facilities.
The ADA also covers a broad range of disabilities, including physical disabilities such as sight and hearing problems and behavioral or mental health disabilities. In 2019, the Department of Justice settled ADA actions against a Massachusetts operator of a chain of nursing homes and a Virginia care facility that had denied admission to patients who were being treated for opioid-use disorders.
Care facilities are also seeing enforcement actions taken under the Fair Housing Act, which prohibits discrimination in housing against the disabled. The FHA broadly applies to “any building, structure, or any portion thereat which is occupied as, or designed or intended for occupancy as a residence”—which can include various forms of senior housing, such as nursing homes, long-term care and assisted living facilities, and continuing care retirement communities (CCRC). “In the CCRC context, a complaint that is often raised is the denial of access to the dining room and other amenities to residents in the assisted living level of care, or who are in need of assistance with ambulation, such as the wheelchair-bound,” says McGovern.
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None of the locations — two in Brooklyn and one in each of the other boroughs — has automatic doors, a situation that Access-A-Ride users, applicants and advocates for people with disabilities say poses a significant hardship.
Recent tweet sparks conversation about campus accessibility
A tweet claiming the SIUE campus is not easily accessible for students with physical disabilities recently brought awareness to the issue.
A Marriage of Convenience? EEOC Continues To Push Non-Competitive Transfer as Reasonable Accommodation
It is a truth universally acknowledged that an employee unable to perform the essential functions of his/her job must be in want of a transfer. And it is also quite clear under the Americans with Disabilities Act that the employer must consider a transfer or reassignment to a vacant position as a reasonable accommodation. What is less clear is whether the employee automatically gets the position (i.e. an arranged marriage) or whether the employer can require the employee to compete for the position (see, e.g. “The Bachelor”).
As with many matters of the heart workplace, the Equal Employment Opportunity Commission and courts take different positions. The EEOC adamantly insists that the employee gets the vacant position as long as s/he is qualified for the position. In Question 29 of its Enforcement Guidance on Reasonable Accommodation and Undue Hardship, the EEOC declaims:
Does reassignment mean that the employee is permitted to compete for a vacant position?
No. Reassignment means that the employee gets the vacant position if s/he is qualified for it. Otherwise, reassignment would be of little value and would not be implemented as Congress intended.
In line with this position, the EEOC issued a press release on January 21, 2020, announcing that M&T Bank has agreed to pay $100,000 and provide other relief to a manager whose position was filled while she was on leave for disabilities associated with her pregnancy. When she was able to return to work, M&T required her to apply for vacant positions for which she was qualified instead of simply reassigning her to one of them as a reasonable accommodation. According to EEOC Regional Attorney Debra M. Lawrence, “This settlement ensures that other qualified employees may get transfers to vacant positions as a reasonable accommodation as required by the ADA.”
Some coldhearted courts agree – like the Maryland Federal District Court judge in the M&T case, who found that the manager “was entitled to non-competitive reassignment to a vacant position for which she was qualified as a reasonable accommodation” (per the EEOC press release). Federal appellate courts in the 5th, 7th, 9th, and D.C. Circuits would also insist upon the shotgun wedding. And in my home state of Maryland, our highest state appellate court – the Court of Appeals – would bestow the vacant position upon the minimally qualified employee under our state disability discrimination law. Apparently these courts would agree with EEOC District Director Jamie R. Williamson, who was quoted in the EEOC’s press release as saying, “Everyone wins when employers provide a reasonable accommodation, such as a transfer to a vacant position, that allows a qualified worker to remain employed – the employee can continue earning a living and the employer retains the services of a trained and competent worker.”
But does the employer really win if they are forced to reject a more qualified applicant for the minimally qualified employee? Perhaps not, according to the romantics, who would allow the employer to follow its heart business judgment and select the best-qualified applicant for the position, which may not be the employee in question. These include the 6th, 8th, and 11th Circuits.
Of particular interest is the 10th Circuit, which offered a more nuanced approach in the 2018 case of Lincoln v. BNSF Railway Co. – that the employee should be given the transfer in most situations, but an employer may arguably rely on its “policy in favor of hiring the most qualified applicant for a position” where “the employee’s qualifications for the position fell significantly below the qualifications of other applicants such that reassignment is not reasonable or would place an undue hardship on the employer.” (Emphasis most decidedly added). Interesting – a matchmaker with a heart some realistic business sense…
Jane Austen would approve.