Questionable fitness-for-duty test implies discrimination by hotel

An employer will violate the ADA if it requires an employee to undergo a fitness-for-duty exam that involves tests or activities that are not related to the employee's essential job duties.

Case name: Green v. CSX Hotels, Inc., No. 5:07-cv-00369 (S.D. W.Va. 01/15/09).

Ruling: The U.S. District Court, Southern District of West Virginia denied cross-motions for summary judgment in a former hotel employee's employment discrimination and retaliation suit under the Americans with Disabilities Act Title I and Title VII.

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What it means: An employer will violate the ADA if it requires an employee who is on leave for an injury to undergo a functional capacity or fitness-for-duty exam that involves tests or activities that are not related to the employee's essential job duties before allowing the employee to return to work.

Summary: A waitress for a hotel restaurant injured her back on the job and took workers' compensation leave. The hotel ordered two functional capacity exams that indicated she could work at a light/light-medium physical demand level. The hotel would not let her return to work pending the results of another examination. It required her to undergo another exam that was more strenuous and involved activities that did not relate to her job. She refused to perform all the activities and was discharged. The waitress sued for disability discrimination under ADA Title I and for race discrimination and retaliation under Title VII. The District Court denied summary judgment to both parties on the disability discrimination and retaliation claims. The court held there were issues of fact regarding whether the hotel regarded the waitress as disabled.

The hotel's refusal to offer the waitress any position after she was released by her doctor to return to work suggests it perceived her as disabled. Additionally, the hotel's insistence that the waitress undergo a third FCE that did not relate to her job duties supports allegations of discriminatory animus. The court also noted that there was a dispute as to the essential duties of the waitress's job, thus creating a factual controversy on that element. Because the evidence suggests that the only reason the waitress did not return on time was the hotel's discriminatory reliance on a nonwork-related FCE, the court found a possibility of pretext.

As for the retaliation claim, the court determined that, despite a lengthy time period between the waitress's protected activity and her termination, there was evidence of retaliatory animus. The waitress submitted many EEO complaints and grievances over the two years that she was on disability leave, the last one two weeks before her discharge. The court noted the possibility that the hotel waited until a "natural decision point" to take action against her.

March 9, 2009

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