Delegating work to subordinates is not reasonable accommodation

5th Circuit grants summary judgement to employer in discrimination case

After being diagnosed with breast cancer in 2009, Sue Bell underwent a successful surgery and returned to her job at Hercules Liftboat Co. after six months of disability leave. Less than two years later, Bell, who was still in the midst of a five-year post-surgery medication regimen, was one of several employees that Hercules fired following a companywide review.

Bell sued Hercules for terminating her in violation of the Louisiana Employment Discrimination Law (LEDL), which states that “no otherwise qualified disabled person shall, on the basis of disability be subjected to discrimination in employment.” For the purposes of the statute, an “otherwise qualified disabled person” is one who can perform the essential functions of her job with reasonable accommodations.

Bell argued that she met that standard, and that Hercules had refused to reasonably accommodate her cancer diagnosis and subsequent medication program. Hercules, meanwhile, contended that Bell could only perform her essential job functions by delegating them to her two subordinates.

Seeming to bolster Hercules’ assertion was an amended complaint that Bell filed in September 2011, which featured an Employee Retirement Income Security Act (ERISA) claim against Hercules and its insurers. In that complaint, Bell said that her medication regimen severely impaired her concentration and her vision, rendering her “[unable] to perform eighty percent of her job duties.”

The district court ultimately dismissed the ERISA claim and granted summary judgment to Hercules on the employment discrimination claim. On April 11, a three-judge panel of the 5th Circuit unanimously affirmed the decision.

The appeals court rejected Bell’s suggestion that she be allowed to delegate the majority of her work to her subordinates, citing its own 1998 ruling in Robertson v. Neuromedical Center, which held that “if [an employee] can’t perform the essential functions of [her] job absent assigning those duties to someone else … [she] cannot be reasonably accommodated as a matter of law.”

Damaging Documentation

A major factor weighing in Hercules’ favor was a deposition that Bell gave as part of her ERISA claim, in which she admitted that she was “not employable” and that “basically, [her] job was getting done because of [her subordinates].” Moreover, Bell noted that her impairment would likely continue for at least three more years—the duration of her medical treatment.

In this case, the ERISA testimony contradicted Bell’s simultaneous argument in the LEDL case that she could perform the essential functions of her job with reasonable accommodations. But A. Edward Hardin, Jr. a partner at Kean Miller, notes that an admission of disability on a benefits claim doesn’t always constitute an admission of disability for the purposes of a discrimination suit.

In a previous 5th Circuit decision involving a Social Security benefits form, the court ruled that although a worker’s “boilerplate representation” of disability in a benefits application does not necessarily prevent her from pursuing an employment discrimination claim, her “specific factual statements” that she cannot perform her essential job functions should lead to summary judgment for the employer.

“Recognize that just because you have one representation relative to one claim doesn’t mean it’s going to be the linchpin to the second claim,” Hardin says. “It’s possible, but you do have to dig into it a little bit.”

Engaged Employer

Although the facts of Bell v. Hercules are relatively unique, experts say that there are still lessons that inside counsel can take away from the case.

One is that companies should engage in a well-documented accommodation process with disabled employees. “Obviously there was a lot of information, which tells me that [Hercules] did engage in a fairly significant interactive process,” says Jackson Lewis Partner Magdalen Blessey Bickford. The company strengthened its case when, at the end of that process, Bell was unable to suggest any reasonable accommodations that would be appropriate for handling her condition.

Hercules also had ample documentation of Bell’s workplace responsibilities, something that some companies neglect, according to Hardin. “A lot of employers don’t identify or define the essential functions of a particular position,” Hardin says. “The pace of employment is so quick these days by the time a job description catches up with the position, it may be inaccurate.”

This can be a problem for companies trying to prove that an employee is not able to fulfill key job duties. In Bell’s case, Hercules provided an “unchallenged employment description” laying out her essential duties, many of which required concentration skills and the ability to use a computer—both things that Bell admitted were impossible while she was on her medication.

Overall, the decision is good news for employers, since it limits the lengths to which businesses must go to accommodate disabled workers. Blessey Bickford, though, notes that Bell’s case was extreme, since she was unable to do 80 percent of her job. “What if the court had found it was 50 percent, or 30 percent or 20 percent?” she asks. “I’d like to think that the answer is that if we have to get somebody else to do someone’s job then whether it’s 10 percent or 80 percent, it’s the same answer. But I don’t know.”

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