Finding no evidence of discrimination under California’s Fair Employment and Housing Act (FEHA), the U.S. Ninth Circuit Court of Appeals ruled that a railroad terminated a train engineer because of his poor attendance, not his diagnosed sleep disorder. Although this case was brought under FEHA, the analysis was the same as it would be under the federal Americans with Disabilities Act (ADA).
The company had granted one of its train engineers a preferential call-in schedule rather than the traditional on-site, five days a week schedule. Not surprisingly, this call-in schedule required that he respond to phone calls; missing more than three calls in a 15-minute period counted as an absence. After six months, the engineer had 10 absences, despite having received additional training and suspensions. In between his initial disciplinary meeting for the 10th absence and the final hearing in which he was terminated, the engineer’s doctor diagnosed obstructive sleep apnea (OSA). The court decided it was too little, too late. The termination process was already in the works and although failing to hear a phone ring may be a general symptom of OSA, the employee wasn’t able to prove it prevented him personally from hearing the phone (Alamillo v. BNSF Railway Co., 9th Cir, August 2017).
Tips: If an employee raises a disability issue during disciplinary procedures, it doesn’t mean you have to stop discipline. Instead, focus on a neutral application of your disciplinary process:
Was the employee aware of the policy and warned about failure to comply?
Did the employee ever request an accommodation (or at least have an ample opportunity to do so)?
Have you documented your fair and consistent application of the rules?
Regarding the topic of documentation listed above, the company neutrally applied its call-in requirements and disciplinary procedures. The employee knew the rules and failed to follow them, and there were no inflammatory or discriminatory statements in the company’s documentation. In fact, the most damming evidence came from the employee who admitted that he refused to give his employer a land-line number (instead of his cell phone number) because he didn’t want his wife finding out about his extramarital affair!
Vigilant has resources on our members-only website to help document performance issues and separate discipline from apparent discrimination. For example, see our Model Form, “Disciplinary Report.” If you are not a member, inquire today about employment law advice for employers, which includes unlimited counsel from a Vigilant employment attorney for a flat monthly membership fee.