Labor & Employment Law Daily Does providing light duty for employees injured at work, but not for pregnant or otherwise disabled employees, violate WLAD?
Friday, February 21, 2020

Does providing light duty for employees injured at work, but not for pregnant or otherwise disabled employees, violate WLAD?

By Kathleen Kapusta, J.D.

If it is sometimes reasonable to require an employer to pare-down injured employees’ existing job duties by reassigning marginal functions to others, it is sometimes reasonable to require it to create a new position by assigning marginal functions of other employees to the injured employee.

Whether an employer that creates light-duty positions for employees injured on the job while refusing to do so for others could have reasonably accommodated employees with non-work-related disabilities by creating light-duty positions for them, or whether creating those positions would have unduly burdened it will be up to a jury to decide, a federal district court in Washington ruled, denying cross-motions for summary judgment on the State of Washington’s WLAD disability discrimination claim. Nor was the state entitled to summary judgment on its WLAD sex discrimination claim asserting that the company’s policy discriminated against pregnant employees. A jury must also decide whether the employer’s alleged unwritten policy of refusing to consider light duty for workers with disabilities not resulting from workplace injuries violated the WLAD (State of Washington v. Matheson Flight Extenders, Inc., February 18, 2020, Coughenour, J.).

When one of its employees is injured on the job, Matheson Flight Extenders, a company that provides terminal and ground handling services for air cargo carriers, accommodates the injury by assigning the employee to light-duty work. First, however, a medical provider must fill out a form or report regarding the injury that is sent to the company’s claims and insurance department, which then drafts a temporary job offer for a light-duty position. The light-duty position is created by taking job duties from other employees that are then redistributed “like chess pieces” to the injured worker.

Subsidized. The process is subsidized in part by Washington’s Department of Labor and Industries, which, under its Return to Work Program, reimburses employers up to 50 percent of the wages of an employee provided light-duty work after an on-the-job injury.

Accommodations for employees otherwise disabled or pregnant are handled through the company’s HR department. While HR might attempt to place a disabled or pregnant employee in an available vacant position, it will not create a vacant one if one does not exist. Instead, the employee is placed on unpaid leave for up to three months. Contending that Matheson’s behavior violated the Washington Law Against Discrimination, the state sued seeking damages and a permanent injunction.

Although the state argued that Matheson’s policy of generally refusing to accommodate workers with disabilities not resulting from workplace injuries violates the WLAD as a matter of law, the court construed this as two claims: a claim against the company’s express policy of creating light-duty positions for employees injured on the job while refusing to create such positions for employees with non-work-related disabilities and for employees who are pregnant and a claim based on its alleged unwritten policy of refusing to consider even vacant light-duty positions for employees who are not injured on the job.

Express policy. Matheson argued it could refuse to create light-duty positions for other employees even though it provided them for employees injured on the job because the WLAD only requires employers to accommodate employees reasonably, not equally, and a request for an accommodation is per se unreasonable if it requires an employer to create a new position. Agreeing instead with the state, the court found that if an employer creates light-duty positions for one group of employees with disabilities, then it must create those positions for all employees with disabilities unless doing so would be unreasonable or an undue burden. Pointing to Washington’s Administrative Code, the court noted that the governing regulations show that “reasonable accommodation” and “undue hardship” “are fact-dependent concepts that are rarely amenable to bright-line rules.”

Chess pieces. Noting further that the Washington Supreme Court, in Pulcino v Fed. Express Corp., emphasized that “Generally, whether an employer made reasonable accommodation or whether the employee’s request placed an undue burden on the employer are questions of fact for the jury,” the court found that especially true where, like here, “Defendant admits that there is ‘not a whole lot involved’ in reassigning tasks; that employees can be ‘moved like a chess piece to another location, to another position’; and that it ‘can accommodate almost everyone unless there’s simply nothing available.’”

While Matheson cited to an EEOC Enforcement Guidance that appeared to support its position, the court noted that the WLAD is broader than the ADA and the Washington high court has “declined to use federal interpretations of the ADA to constrain protections offered by the WLAD.”

And although it might sometimes be reasonable to create a light-duty position as an accommodation, it might also require too much time and effort to train an employee in the new position or it might significantly disrupt the employer’s operations if it has to alter which employees do what tasks. Here, the court pointed out, that Matheson creates light-duty positions for some employees suggests that it might have been able to do this for employees with non-work-related disabilities. But there was also testimony that without the subsidies it received from the state, it could not have afforded to create the positions.

Declaring it up to a jury to decide whether Matheson could have reasonably accommodated employees with non-work-related disabilities by creating light-duty positions for them or whether creating those positions would have unduly burdened it, the court denied cross-motions for summary judgment on the WLAD disability discrimination claim.

Sex discrimination. The state also argued that Matheson’s express policy discriminates against employees because they are pregnant. Noting that Matheson treats pregnant employees differently in the terms and conditions of their employment because it does not offer them light-duty positions to the same extent that it offers light-duty to other employees who are similarly situated in their ability to work, the court found this “facially disparate treatment gives rise to an inference of discrimination.” Pointing out again, however, that a jury could find Matheson adopted its policy because Washington subsidizes the wages of employees who are given light-duty only if the employee is injured on the job, the court found a jury could also conclude that the company had a nondiscriminatory motive for adopting the policy. Thus, the court denied the state’s motion for summary judgment on this issue.

Alleged policy. As to Matheson’s alleged policy, the state challenged the company’s “general refusal to consider light duty for workers with disabilities not resulting from workplace injuries.” After first finding that the state had to show Matheson had a pattern or practice of discriminatory behavior, the court found its pattern or practice evidence was sufficient to survive summary judgment. There was direct evidence in the form of testimony from a supervisor that his manager had a “position against assigning employees light duty unless they were injured at work,” as well as anecdotal evidence from three employees who sought accommodations but were not injured on the job and were not provided with light-duty positions. Once again, said the court, it was for a jury to weigh the evidence.

Individual claimants. Turning to Matheson’s assertion that the workers’ compensation exclusivity doctrine barred the state’s claims on behalf of four individual claimants with work-related disabilities, the court pointed to the state high court’s broad holding in Reese v Sears, Roebuck & Co. that the provision did not preclude WLAD failure-to-accommodate claims. Although Matheson argued that the four claimants did not suffer a separate and distinct injury such as emotional distress, that “ignores what Reese already decided: an employee is separately injured whenever they are harmed by an employer’s discriminatory response to an IIA-compensable injury.” Because the state did not need to prove that the claimants suffered emotional distress, the court denied the company’s motion for summary judgment.

Affirmative defenses. Finally, addressing the company’s affirmative defenses, the court first rejected Matheson’s assertion that the state’s motion for summary judgment dismissal of its defenses was premature because it had not had the opportunity to conduct discovery as to them. It did not identify any specific relevant information, explain how that information might relate to a particular defense, or offer any basis to believe the information exists.

Turning to its assertion of the laches defense, the court found this did not apply because the state was the named plaintiff and was suing in the pubic interest to enforce its anti-discrimination laws. As to waiver, ratification, judicial estoppel, equitable estoppel, and unclean hands, the company did not offer any evidence to establish a fact issue as to any of these affirmative defenses. Nor did it identify any employee misconduct that would have been separate grounds for termination, said the court, granting summary judgment against the after-acquired evidence defense.

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