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Recent Trends in the Seventh Circuit

November 20, 2020
By: Abby S. (Busler) Tilkens

Over the past few months, the Seventh Circuit Court has been extremely active in issuing decisions regarding interpretations of labor and employment questions.  Given the increase in recent decisions, employers should be aware of the trends and outcomes that may impact their businesses.  Two of those cases dealt with disability discrimination under the Americans with Disabilities Act (ADA).  In each case, the Seventh Circuit Court reinforced the guidelines it uses to make that determination.

In Tonyan v. Dunham’s Athleisure Corporation, the Seventh Circuit Court reviewed whether an employee was properly terminated when she was unable to complete the essential functions of her job.  The employee worked as a store manager and suffered an injury leaving her unable to lift more than two (2) pounds.  As a store manager, she was required to perform various forms of physical labor, including unloading and shelving merchandise.  She argued that her termination was a result of discrimination based on her disability.  The employer demonstrated that the employee was unable to perform essential functions of her job.  In response the employer presented the job description and supporting documentation  showing that physical labor was a necessary part of the role of a store manager, and essential to Dunham’s business model.  The Seventh Circuit Court held in favor of the employer, citing that the employee could not complete the essential functions of her job.  The Court also stated “[w]e usually do not ‘second-guess’ the employer’s judgment in describing the essential requirements for the job.”

This case highlights the importance of, accurate and thorough job descriptions.  Having the documentation ready to demonstrate the job descriptions are accurate and the duties are necessary to perform the required remains an excellent defense when an issue of a disability accommodation is raised -.  In determining whether an accommodation is required, the employer must identify what the essential functions of a job are usually using a dialogue process with the employee.  Where the essential functions are well established, and the need for their performance documented, the Tonyan case reiterates the conclusion that Employers are not required to accommodate the inability of an employee to perform the essential functions of a job.

In Kurtzhals v. County of Dunn, the Seventh Circuit Court reviewed whether the county improperly placed an employee on temporary leave and targeted the employee resulting in employment discrimination.  In Kurtzhals, a Sergeant engaged in a verbal altercation with a fellow officer.   This fight escalated when the Sergeant threatened physical violence against the other officer. The County placed the employee on paid administrative leave as a result of his altercation with the other employee, per its policy regarding violence in the workplace.   The County also required the Sergeant to undergo a fitness-for-duty evaluation prior to returning to work.  The Sergeant alleged the County was discriminating against him by requiring the fitness-for-duty evaluation.  The employee was convinced this action was taken only because of his PTSD; however, the County focused on the employee’s inappropriate behavior and safety in the workplace when placing him on leave.  The County required the fitness-for-duty because the Sergeant violated the violence in the workplace policy and the fitness-for-duty evaluation was consistent with the policy purpose and protocol.

The County had a preexisting policy requiring that any employee out on administrative leave must undergo a fitness-for-duty review prior to returning to work.  Regardless of whether the employee felt targeted due to his PTSD the County was following its policy and applying it equally as it would with any other employee in a similar situation.  The Seventh Circuit Court held that the County’s decisions were consistent with a business necessity and were not discriminatory.

In both cases, the Seventh Circuit Court reviewed disability discrimination allegations.   In Tonyon, the employers’ detailed job description and supporting documentation was lead to the favorable result.  In Kurzhals, the well thought out policies and consistent practices in implementing those policies formed the employer’s defense.  In each case the documentation and policies were already in place prior to the incidents and each employer relied on the respective information in proving no discrimination occurred.

These cases highlight the need for employers to stay up-to-date on their documentation, including but not limited to: policies, handbooks, and job descriptions.  The Seventh Circuit Court has shown it is likely to rely on the documentation presented by the employers and rule in their favor based on existing policies and job descriptions.   These cases act as reminders that  employers should review their own internal documentation, procedures and policies to ensure it is accurate, up-to-date and consistently applied.  Having those bases covered continues to form the basis of a strong defense in discrimination cases.

This article will be published in the November 2020 edition of The Business News.

Abby S. Tilkens serves as member of the firm’s Labor & Employment team and the School and Higher Education practice group in Green Bay. Her practice primarily focuses on counseling education clients in school law and labor and employment issues. Abby can be reached at atilkens@dkattorneys.com or 920.431.2230.