This Littler Lightbulb highlights some of the more significant employment law developments at the U.S. Supreme Court and federal courts of appeal in the last month.

At the Supreme Court

• Court Hears Challenges to Federal Agency Deference to Statutory Interpretation

On January 17, the Supreme Court heard oral arguments in Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce, two cases asking the Supreme Court to overturn Chevron USA, Inc. v. Natural Resources Defense Council, the landmark Supreme Court decision providing deference to federal agency interpretations of statutes they are charged with enforcing that are ambiguous or silent on an issue. For insight on how the Court’s decision could impact employment law, see Littler’s discussion in “What Would Overruling Chevron Mean for Labor and Employment Law?”

In the Federal Appellate Courts

• Fifth Circuit Assesses Employer Response to Sexual Harassment and Race Discrimination Complaints

Johnson v. Board of Supervisors of LSU, No. 22-30699, 90 F.4th 449 (5th Cir. 2024) involved a claim of Title VII harassment and retaliation by an administrative coordinator at a university Division of Animal Care who claimed that one of the veterinarians in the department, whose office was close to plaintiff’s location, slapped her buttocks – conduct referred to by the court as “the Incident.” The plaintiff also claimed the veterinarian engaged in several other instances of sexual and racial harassment in the months preceding the Incident.  The plaintiff reported the Incident to her supervisor who notified human resources. The plaintiff was then immediately relocated to a space in another building for a few days before being relocated to a storage room that she claimed was full of gnats, emitted an odor, and had windows that were covered with black paper. Ultimately, following an investigation in which her complaint against the veterinarian was substantiated, plaintiff was returned to her original workspace and the veterinarian was moved. 

Plaintiff filed suit in federal court alleging sexual harassment, racial discrimination, and retaliatory harassment in violation of Title VII based on pre-Incident conduct, the Incident, and her relocation to the storage room. The district court granted summary judgment to the employer on all claims and the plaintiff appealed.  The main issue in the case was whether the employer knew or should have known of the harassment and failed to take prompt remedial action. As to the Incident, the court concluded that after the plaintiff lodged her complaint with HR, the university promptly took steps to relocate her workspace so that she did not have to interact with the veterinarian, followed by an investigation that led to permanently moving him. As to the pre-Incident harassment, the court found conflicting evidence about “what other individuals saw, heard, thought, and did in relation to [the] alleged conduct,” but ultimately concluded that the plaintiff failed to establish the university either “knew or should have known” of the harassment. Finally, as to plaintiff’s claim that the university retaliated against her for reporting harassment by moving her to the storage room while the investigation was ongoing, the court found the university had a legitimate non-retaliatory reason for her relocation to the storage room: There was limited space, and it was a “safe place” where she would not run into the alleged harasser and still be close to the other faculty with whom she worked.  For all these reasons, the Fifth Circuit affirmed summary judgment for the employer on all claims.

• Seventh Circuit Assesses Whether Physical Abilities Test with Disparate Impact on Women Violates Title VII

After the plaintiff in Erdman v. City of Madison, --- F.4th ----, No. 22-2433 (7th Cir. 2024) was eliminated from the hiring process for a city firefighter position when she failed the physical abilities test required for the position, she filed suit against the city claiming the test had a disparate impact on women in violation of Title VII. The posting for the city’s firefighter position identified the physical requirements for the position, including performing various physical activities while carrying heavy equipment and wearing firefighter protective clothing weighing more than 50 pounds, which were all part of the physical abilities test. The plaintiff had proposed a different physical abilities test that was shown to have less disparate impact on female applicants and, she claimed, would have sufficiently served the city’s purpose of testing applicants’ physical abilities to work as firefighters. The city had considered the alternative test but decided to continue using its own test.

After a bench trial, the district court found the plaintiff had failed to prove her claim that the fire department’s physical abilities test violated Title VII.  The court found that although the test had a disparate impact on women, it was job-related and served the city’s legitimate needs, and that the plaintiff failed to prove that her proposed alternative test would do so. Accordingly, the court held, the city’s physical abilities test for firefighters did not violate Title VII.  

On appeal, the city conceded that the test it used had a statistically significant disparate impact on female applicants, and that the proposed alternative test had less disparate impact on female applicants. However, the city claimed, that test “does not serve the department’s unique legitimate needs.” The Seventh Circuit agreed, noting that certain elements of the city’s test were developed based on specific characteristics of the city fire department, including the department’s equipment. In addition, the court stated, “[f]actors such as the cost or other burdens of proposed alternative selection methods are also relevant in determining whether they would be substantially as efficient as the challenged practice in serving the employer's legitimate business goals.”  The appellate court also found the evidence submitted at trial “permits an inference” that the city’s test was more effective than alternative tests at screening out applicants who were “likely to wash out at later stages in the training process,” noting that the city had a higher-than-average rate of hiring and retaining female firefighters. Based on all these factors, the Seventh Circuit affirmed the trial court’s decision.

• Eighth Circuit Finds Race and Gender Discrimination Claims Did Not Support an Inference of Discrimination

Ingram v. Arkansas Dept. of Correction, --- F.4th. ----, No. 23-01413 (8th Cir. 2024) involved a Black female Department of Corrections employee who was terminated from employment after an inmate broke into the prison’s hobby crafts office and stole money kept there, using the keys she was responsible for safeguarding. The employee filed suit alleging she was terminated based on her race and sex in violation of Title VII.  The district court granted the employer’s motion to dismiss, and the plaintiff appealed. In support of her claims, the plaintiff alleged that white males accused of similar wrongdoings were treated more favorably, but none of the other alleged comparators, the court found, were similarly situated to the plaintiff.  To be similarly situated, the court pointed out, “[t]he comparators need not have committed the exact same offense but must have engaged in conduct ‘of comparable seriousness.’” Because she failed to show that she was treated differently than similarly situated employees, the Eighth Circuit affirmed the district court’s dismissal of the case.

• Fourth Circuit Addresses Standards for Reasonable Accommodation under the ADA in Two Cases

In Kelly v. Town of Abingdon, No. 21-2261, 90 F. 4th 158 (4th Cir. 2024), the Fourth Circuit addressed an employee’s claim that he was constructively discharged in violation of the ADA following his resignation because his employer failed to provide accommodations requested in a letter seeking changes to “the daily office environment.” Although there was no dispute that the employer knew the employee suffered from anxiety, depression, and high blood pressure, his letter entitled “Accommodations Requests” did not inform his employer that he was seeking accommodations for these conditions, the court found. “[J]ust as an employee need not formally invoke the magic words ‘reasonable accommodation,’… those magic words are not sufficient to trigger the employer’s duty to pursue the ADA interactive process,” the court stated.  Instead, the court held, “to place the employer on notice, there must be a logical bridge connecting the employee’s disability to the workplace changes he requests.” The employee’s letter did not do this, the court held.  For similar reasons, the court rejected the employee’s disability discrimination claim, finding the employer’s failure to engage in the interactive process following receipt of the employee’s letter requesting accommodations did not support an inference of disability discrimination. The court also rejected the plaintiff’s claims for retaliation, and interference with his rights under the ADA, finding no evidence that his employer discriminated against him because of a disability or “coerced, threatened, intimidated, or interfered” with the exercise of his rights under the ADA.

The plaintiff in Tartaro-McGowan v. Inova Home Health, LLC, --- F.4th ----, No. 22-1825 (4th Cir. 2024) was employed by a home health care agency as a field nurse providing direct care to patients in their homes. After developing chronic arthritis in her knees, which limited her ability to squat, kneel, bend, or otherwise put stress on her knees, the plaintiff moved to a supervisory position as a clinical manager. Following a merger, the plaintiff was offered and accepted a new clinical manager position, despite her concern that the new position would require her to “sometimes” provide direct patient care. At the beginning of the COVID-19 pandemic, plaintiff’s employer experienced a severe shortage of field clinicians and informed its staff, including clinical managers, that they would be required to perform direct patient care field visits until the company could hire additional field nurses. Plaintiff submitted a request for an accommodation to avoid performing any direct patient care field visits, with a note from her physician supporting the request. In response, the employer indicated that they could not eliminate patient care field visits altogether, but they could allow the employee to screen patients and select field visits that would not require her to squat and bend her knees, and that they would also work with her to spread out field visits as much as possible during the week. When plaintiff rejected this alternative, the employer reiterated that they could not eliminate field visits, which were an essential function of plaintiff’s job, and asked the plaintiff to propose other alternative accommodations. She did not do so, and ultimately, when she failed to conduct a direct patient care visit for which she was scheduled, the plaintiff’s employment was terminated, and she filed suit in federal court for failure to accommodate, discrimination, and retaliation in violation of ADA.

The district court granted summary judgment to the employer on all claims and the plaintiff appealed. Beginning its analysis, the Fourth Circuit noted that “what counts as a reasonable accommodation is not an a priori matter but one that is sensitive to the particular circumstances of the case.” The Court continued that “an employer is not necessarily required to ‘provid[e] the exact accommodation that the employee requested.’...To the contrary, where ‘an employee may be accommodated through a variety of measures, the employer, exercising sound judgment, possesses the ultimate discretion over these alternatives.’”  In addition, the court emphasized:

The ADA requires reasonableness, not perfection. Reasonableness does not demand that an accommodation have an airtight solution to every contingency conceivable. Its dictates are tethered to the practical realities of each case, not boundless hypotheticals.

Applying these principles, the court concluded that the employer’s proposed accommodations were reasonable, particularly considering the severe lack of patient care field clinicians due to the pandemic. Similarly, the court found, plaintiff’s termination for failure to perform direct patient care visits, could not be considered discriminatory or retaliatory following her employer’s efforts to work with her, its proposals for a reasonable accommodation, and her failure to propose a reasonable alternative. Accordingly, the court affirmed summary judgment on all grounds.