As we all know, absent an undue hardship, an employer is required to provide reasonable accommodations to enable employees with disabilities to perform the essential functions of their job positions. In order to do so, employers are often required to engage in the "interactive process," working with the employee to identify an appropriate workplace accommodation. If the employer fails to engage in this process in good faith, it may open itself up to exposure under the Americans with Disabilities Act (ADA).


In a recent case, the Montana Supreme Court reminded us that the employee is also required to participate in the interactive process, and the failure to do so may torpedo the employee's ADA claims.


In Alexander v. Montana Development Center, (Nov. 13, 2018), the plaintiff filed a claim for the failure to accommodate under the ADA. The plaintiff had been employed as a shift manager for an intensive, short-term treatment facility for individuals with intellectual disabilities and mental illnesses. In his position, the plaintiff was required to physically restrain clients as necessary, which could lead to physical confrontations. After one such incident, the plaintiff injured his shoulder and underwent surgery. Ultimately, it was determined that his shoulder could not recover further, and he was issued permanent medical restrictions prohibiting him from restraining clients.


At that time, the plaintiff and the company sat down to discuss potential accommodations. The employer asked whether a shoulder brace would allow him to safely restrain clients again; the plaintiff's doctor, however, concluded that a shoulder brace or other support offered him no significant protection from reinjury.


The employee then proposed an alternative accommodation, asking the company to staff at least two direct support professionals with him at all times to ensure that he would not have to engage in further physical confrontations with clients. After evaluating the request, the company found that this proposal was unworkable as a practical matter.


Having determined that there was no way to alter the employee's current job that would allow him to perform the essential functions of the position, the employer and the employee began discussing alternative positions within the organization. The company offered to research and identify vacant positions once the employee informed the company of his qualifications, education, and training. It also advised the employee to check job positions posted internally through weekly bulletins and publicly through the State of Montana website. The company also identified two vacant positions, including a maintenance position and a data control technician position. The employee indicated that he felt unqualified for the data control technician position, and he did not follow up regarding the other available vacant position. Likewise, he did not inform the company of his qualifications, education, and training, nor did he propose any additional accommodations that would allow him to continue his employment.


Ultimately, because an available accommodation could not be identified - and also because the employee did not work with the company further to identify a vacant position he was qualified to fill, the employee was terminated in November 2015. He then filed a claim for disability discrimination under the ADA. After the district court dismissed the plaintiff's claims, he appealed to the Montana Supreme Court.


In the end, the Court agreed that the plaintiff did not have a viable claim under the ADA. In an accommodation case, the employer and employee have "a shared goal to 'identify an accommodation.'" The Court found that the company acted in good faith to assist in the search for a reasonable accommodation; the company evaluated the possibility of a shoulder brace, considered a proposed accommodation requested by the employee, and evaluated the possibility of reassignment to an alternative position. However, "[the plaintiff's] failure to communicate further with [the company] caused the interactive process to break down." He failed to provide the company with information regarding his qualifications; he did not follow up with respect to a proposed open position; and he did not inquire further about any other vacant positions that might be available. As such, the Court found, "the subsequent break down in the interactive process is solely attributed to [the plaintiff]."


The Alexander case is a simple reminder to employers that, when engaged in the interactive process under the ADA, they should be at all times open to further discussion as to available accommodations, whether they be changes to the employee's existing position or reassignment to other available jobs. You never want to be the entity that walks away from the interactive process. In the Alexander case, it was the employee who walked away from the interactive process, and that made all of the difference in the case.





In 2012, the U.S. Department of Labor (DOL) issued a guide to assist employees in navigating the Family & Medical Leave Act (FMLA). On April 25, 2016, the DOL finally issued a companion guide for employers. The Employer’s Guide to the Family & Medical Leave Act ( is intended to provide “essential information about the FMLA, including information about employers’ obligations under the law and the options available to employer in administering leave under the FMLA.”


What this guide does well: The new employer guide provides a good synopsis of the FMLA, and it walks employers through the process of dealing with a typical leave process under the FMLA. As such, we believe that this guide will be most useful in providing a good overview of those processes to front-line supervisors or others who do not normally deal with the FMLA.


What the new guide does not do especially well: Because of its focus upon the typical leave situation, the new guide does not delve into the intricacies of the FMLA or attempt to tackle any of the more difficult issues arising under a non-typical leave situation. This should not come as a great surprise (particularly given that this is supposed to be simply a guide to the FMLA), but that fact will render this guide less useful for Human Resources experts who deal with the FMLA on a daily basis.


In addition to this new employer guide, the DOL has announced that it is creating a new General FMLA Notice, the job posting which must be posted in all workplaces by employers covered by the FMLA. Although we have not yet had an opportunity to examine this new notice, it does not appear that it will include any new or different information; rather, the DOL has indicated that the purpose of this new notice will be to better organize the existing materials so that they are readily understandable by employees.


These new changes do not present any grand new developments in a legal sense, but they certainly demonstrate the degree to which the DOL is attempting to clarify and streamline what can often be a complex, difficult-to-understand process.


If you have questions about this Employment Law Alert or wish to discuss the impact of this decision upon your business, please do not hesitate to contact Maury Nicely at Evans Harrison Hackett PLLC, 423/648-7851 or This email address is being protected from spambots. You need JavaScript enabled to view it. .


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For those of you that have been following the news, the State of North Carolina has received a fair amount of negative publicity after enacting legislation restricting the restrooms which can be used by transgender individuals. Today, the federal Department of Justice warned North Carolina that its “bathroom law” violated the civil rights of LGBT persons. Similar proposed legislation in Tennessee failed, and various other states are in the process of discussing this topic.


With all of this as a backdrop, on May 2, 2016, the EEOC issued a fact sheet entitled Bathroom Access Rights for Transgender Employees under Title VII of the Civil Rights Act of 1964.


Transgender issues have been a hot topic for the EEOC for several years now. In Macy v. Dep’t of Justice (April 12, 2012), the agency ruled for the first time that discrimination based upon transgender status is sex discrimination in violation of Title VII, the federal law prohibiting discrimination in the workplace.


On September 25, 2014, the EEOC filed two landmark cases alleging that employees have been terminated unlawfully because of their transgender status. As a side note, on April 7, 2016, one of those companies, R.G. Harris Funeral Homes, filed a motion for summary judgment seeking dismissal of the allegations. In that case, a funeral home director/embalmer was terminated several weeks after revealing that he was in the process of undergoing a gender transition, and that the employee would therefore begin wearing to work clothing consistent with her current gender identity as a woman. In its filing, the funeral home contended that there is nothing unlawful about requiring employees to wear gender-specific uniforms in the workplace; that professional decorum in the funeral home industry requires a dress code sensitive to customers during a very delicate time in their lives; and that the funeral home’s religious beliefs outweigh any desire by employees to wear a certain type of clothing. It remains to be seen how the federal courts in Michigan will rule on that case.


All of the above is a backdrop to the Fact Sheet issued by the EEOC on May 2. In that document, the EEOC stressed the following points with respect to providing bathroom access for transgender workers:


* Denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination;


* An employer cannot condition restroom access on the employee undergoing or providing proof of surgery or other medical procedure; and


* An employer cannot avoid this requirement by restricting transgender employees to single-user restrooms (although the employer can make a single-user restroom available to all employees who choose to use it).


Also, the EEOC stressed that the mere fact that coworkers are confused or anxious about sharing a restroom with a transgender employee does not justify discrimination in the workplace.


Frankly, issues involving transgender restroom access do not arise all that often at this time. However, we are beginning to see more and more issues relating to transgender status in the workplace, and it is clear that this is firmly on the radar screen of the EEOC. With that in mind, employers are well-advised to be prepared for these issues as they may arise in the future.


If you have questions about this Employment Law Alert or wish to discuss the impact of this decision upon your business, please do not hesitate to contact Maury Nicely at Evans Harrison Hackett PLLC, 423/648-7851 or This email address is being protected from spambots. You need JavaScript enabled to view it. .


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As we have discussed in several prior Employment Law Alerts, the National Labor Relations Board (NLRB) has in recent years focused upon closely scrutinizing employee handbooks to determine whether any of their provisions (usually unwittingly) would serve to violate the Section 7 right of employees to engage in concerted activities in the workplace.


On April 29, 2016, the NLRB issued a new decision finding that various provisions contained in the employee handbooks of T-Mobile USA, Inc. and MetroPCS Communications, Inc. did, in fact, violate Section 7 of the National Labor Relations Act. To the naked eye, it would seem clear that the rules created by T-Mobile and MetroPCS were designed for the laudable purpose of protecting privacy and harmony in the workplace. Nevertheless, the NLRB struck down these provisions.


The NLRB scrutinized four provisions of these employee handbooks:

1. A restriction on providing non-approved individuals with access to information (or resources for information) without written approval. The NLRB held that this rule was overly broad and could be interpreted by employees to prohibit them from sharing/disclosing their own salaries or disciplinary information.

2. A “commitment to integrity” provision prohibiting arguing with co-workers, supervisors, or subordinates. Employees, the NLRB found, could interpret this provision to restrict them from discussing potentially contentious or controversial workplace issues. Labor matters, including organizing campaigns, typically involve contentious or controversial issues; therefore, this rule could be interpreted to prohibit employees from engaging in protected Section 7 activities.

3. A rule requiring employees to maintain a “positive work environment by communicating in a manner that is conducive to effective working relationships.” To most observers, this rule would appear to be fairly innocuous. Using the same reasoning as in Section (2) above, however, the NLRB also struck down this provision.

4. A rule prohibiting the recording of other people or confidential information. This rule was intended by the employer to prevent harassment and promote privacy interests. Nevertheless, the NLRB held that the rule was problematic because it did not differentiate between recordings that might be protected under Section 7 and those that are not.


How do the good intentions of the employer factor in when analyzing handbook provisions under Section 7? According to the NLRB, employer’s good intentions are largely irrelevant to this analysis.


So…what is the takeaway from this decision? First, it is clear that the NLRB is continuing its campaign to scrutinize employee handbooks and strike down provisions that might otherwise be deemed completely rational and reasonable. Employers should take the time to ensure that their rules are narrowly tailored so as to accomplish the purpose for which they were created, while not being so overly broad as to inadvertently restrict behavior which is otherwise protected by law.


Also, remember that the courts of appeals may have a very different interpretation of these rules from the current NLRB, and it is always possible that this ruling (or similar rulings) might be overturned if challenged. For now, however, the most important lesson that employers can take away from cases such as this is the need for close scrutiny of employee handbook rules, particularly those rules which deal with topics such as employee conduct, privacy, and confidentiality.


If you have questions about this Employment Law Alert or wish to discuss the impact of this decision upon your business, please do not hesitate to contact Maury Nicely at Evans Harrison Hackett PLLC, 423/648-7851 or This email address is being protected from spambots. You need JavaScript enabled to view it. .