Signs of Bias in Rejected Request for Accommodation

Commentators

• Megan Kures, JD

Transcript

The following case study is based on claims in the Harvard medical system. Names and some details have been changed to protect identities:

Raquel Ademas moved stateside from Puerto Rico to get her nurse’s aide certificate. She found employment at the hospital near the apartment she shared with her boyfriend and two children. The position, patient care assistant (PCA), provided training, health insurance, and a good starting wage. Ademas felt at home on her unit: 10 of the 12 PCAs had Caribbean or Central American backgrounds.

Even as she gained seniority, Ademas noticed that two new hires, both white, did not get assigned night shifts, and were often allowed to leave early on slow shifts. Ademas, who suffered migraines and sleep deprivation, asked her manager, Yvette Gen, if she could be excluded from night shifts. Without asking any questions or contacting HR—or her own supervisor—Gen refused any accommodation. She told Ademas that everyone had to work some nights until they had top seniority status. Then she added, “and you island girls never stay long enough to get there.”

Ademas later learned from other PCAs that Gen often mocked their accents and made unkind comments about “island girls,” then started to witness it herself. When Ademas started getting assigned extra tasks, and more night shifts than the other PCAs, she contacted the Operations Manager (Gen’s supervisor). During that conversation, Ademas confided to her about Gen’s derogatory remarks. The Operations Manager told Ademas, “I’ll talk to her…again.” But no investigation took place, and the Operations Manager did not report the complaint to HR.

After that meeting, Gen was even more critical of Ademas’ work. Ultimately, Ademas contacted the hospital’s employee assistance program, which put her in touch with a pro bono legal service. Ademas filed a complaint with the state discrimination board alleging racial discrimination, a hostile work environment, and retaliation.

This case was settled on behalf of the hospital with a payment to Ademas.

To discuss the risk management and patient safety aspects of this case, we are joined now by Boston attorney Megan Kures. Ms. Kures is a partner with Hamel, Marcin, Dunn, Reardon, and Shea.

Q.) Megan, thank you for joining us.

A.) Thank you very much, happy to be here.

Q.) So, I think in med mal law we’ve learned that you need to meet certain criteria to be found liable under the tort system so you have duty, breach, damages, causation. Is it similar for a case like this which really went into a state discrimination board, not necessarily a court but is this area of the law more cut and dry or is it a little harder?

A.) So, just in general, in order to prove a general discrimination case first of all the individual’s going to have to prove that they are a member of a protected class. So, that is straightforward. So, the next thing that they’re going to have to prove is that they just, that they suffered some adverse employment action. And again, that’s relatively straightforward. There are some cases where that is a real issue whether or not whatever it is that the person is complaining about could be construed as an adverse employment action. But when you get into the next part of the claims, what they have to prove is that the adverse employment action was related to some discriminatory animus so that the reason that something bad happened to them was that somebody was discriminating against them. And that’s where the facts are going to be very different case to case, and will really sort of come into play in how a court or eventually a jury or even the MCAD or a similar state or federal agency is going to view it.

Q.) In this case, the plaintiff herself felt that the request for accommodation was reasonable. Everything after that from the hospital seemed a little bit ad hoc, from whoever was handling it to whatever their response was. Several things kind of went wrong along the way. Can you walk us through that?

A.) Yeah, absolutely, and this for better or worse is not unique to this case. This is a really tricky area for employers to deal with and it’s a tricky area of employment law frankly, insofar as what constitutes a reasonable accommodation and what is the employer’s obligation once that request is made, to sort of put the wheels in motion to either make that happen or make a decision that that’s something that we cannot do. And in this particular case, once the request for the accommodation was made, there wasn’t a whole lot that was done to, really make a good faith determination as to whether or not this is something that we can do. It was a little bit more of a knee-jerk reaction, and I think that that is something that sometimes does happen. Particularly because a lot of times employers are looking at it from the perspective of, ‘well, what is fair to our other employees? And if we make this exception for this person, how is that going to impact how we handle requests of similar nature or the same type of request that may not be in relation to a disability with the rest of our workforce and be fair?’ So, one of the things that is important when looking at these requests for accommodation is to make sure that there really is a good-faith effort by the employer to determine if this is something that they can do without—you know the way that it’s looked at in the laws, do you have to fundamentally restructure the job requirements in order to provide this accommodation? If the answer to that is yes, then the employer can make a legitimate argument that it’s an accommodation that they probably can’t provide in a reasonable manner. But if there are steps that can be taken to facilitate this request to make it happen without creating such an undue burden, it really needs to be done even though it may be inconvenient or perhaps not the most desirable thing for everybody that’s involved. And, unfortunately, with this particular case with it being more of a knee-jerk denial of the request, there wasn’t a lot that went into making a determination about whether this could be implemented for this employee and how.

Q.) Now they didn’t use their HR Department; they didn’t consult them, which you would assume there would be some expertise there . And there was also sort of loose talk about the person having done some of these things in the past. Can you address that?

A.) Yeah, absolutely. So in this particular case, and I think that this does happen from time to time, when the request for the accommodation initially came in, it was addressed by the employee’s supervisor and the supervisor did not consult Human Resources before going back to the employee with her response to that request for accommodation. And sometimes I think these, this scenario plays out because the supervisors have the relationship with the employee and they know sort of the inner workings of the department. So, sometimes they will feel comfortable making these decisions on their own, and sometimes they feel that they don’t need to get HR involved. But getting HR involved in these types of situations is really important. They tend to have sort of a better level of training and more knowledge and expertise about what it is that really is required when these requests come in. And I think sometimes, too, the fact that they may be detached from the day-to-day operations of the department it also takes out some level of people viewing this as being personal. Because these requests generally are not personal, and sometimes having somebody who is not involved on a day-to-day basis of dealing with some of these employees, it makes it easier for them to just focus on the real issue that’s at hand with the request for the accommodation. Avoid some of the other interdepartmental drama that might be going on and make these decisions in a way that is perhaps more fair and might be viewed better by the employee than something coming from the direct supervisor.

Q.) It also looks like there wasn’t a lot of training on this issue of accommodation. The case looks like it has a lot of these risk management elements. But do you recommend anticipating this generally and having more training for the frontline people rather than just sort of concentrating the expertise in the HR Department?

A.) You know, I think more training is always helpful. I certainly recognize that there are limitations to that and you can’t have every workday taken up with training around the clock. But some of these issues, I think because they have the potential to become so problematic when somebody goes into a management level position, I think having them be generally aware of what the law requires or even just knowing that when you get this type of a request, go to HR, seek their input. They’re there as a resource. Don’t try to handle these things on your own. I think that that’s important, but I think there has been more of an emphasis on this area of disability, discrimination, and the concept of reasonable accommodations. So, I think it’s something that’s going to be seen more and more in the workplace. And I think, too, with adaptive technologies and sort of some of the shift of working from home and things of that nature that were associated with the Covid pandemic, that employers are going to start to get more and more requests that are really truly designed to help bring people into the workplace who might not otherwise been able to be part of that workforce. And the more that employers train their management-level people on how to deal with these situations, I think it’s going to save time, money, and effort down the road.

Q.) Excellent. Thank you, Megan.

A.) You’re very welcome, my pleasure.

Q.) Megan Kures is a partner with Hamel, Marcin, Dunn, Reardon, and Shea PC. I’m Tom Augello for Malpractice Insider.