The Ninth Circuit Court of Appeals recently ruled against a failure-to accommodate claim brought by a customer service employee who was fired for poor performance. According to the court, the former employee, who suffered from endometriosis and headaches, was not able to show that she was qualified to perform the essential functions of a customer service job. Kelley v. Amazon.com, Inc., No. 13-36114, United State Court of Appeals for the Ninth Circuit.
As a customer service associate employed by AMZN WACS, Inc. (which is a subsidiary of Amazon.com, Inc.), Jodie Kelley was responsible for fielding questions from customers and resolving complaints. While employed by Amazon, Kelley who suffered from endometriosis and migraine headaches, took medical leaves on an intermittent basis. In 2010, her job performance began to decline as evidenced by her “Expressed Dissatisfaction Rate (EDR), which was derived from customer surveys.” After attempting, unsuccessfully, to remedy Kelley’s deficiencies, Amazon fired her.
Kelley filed suit against Amazon alleging violations of the Americans with Disabilities Act (ADA), the Washington Law Against Discrimination, and the Family and Medical Leave Act (FMLA). The U.S. District Court in the Eastern District of Washington ruled in favor of the employer, and Kelley appealed.
The Ninth Circuit’s Decision
Kelley argued that Amazon failed to accommodate her disability. The court found that Kelley’s failure-to-accommodate claim failed because there was an issue as to whether she was qualified to perform the essential functions of her job with or without a reasonable accommodation. According to the court, “customer service is the reason for the existence” of Kelley’s position. Moreover, the court found, “[o]ver the course of at least eight months, she regularly failed to meet the EDR standard required for her team even after repeated attempts by Amazon personnel to improve her performance.” Thus, the court concluded that Kelley had failed to create a jury issue regarding whether she could “deliver adequate customer service with or without a reasonable accommodation.”
With regard to Kelley’s suggested accommodations—including a transfer to another customer service position and a medical leave of absence—the court found that “[a] reasonable trier of fact has no basis to conclude that any of the accommodations . . . are reasonable.” With regard to a transfer, the court found that there was no record that positions for which Kelley was qualified were available. With regard to a leave, the court found that Kelley had not produced any evidence that her impairments were treatable or that her “tone of voice”—which Kelley had claimed was responsible for her performance deficiencies—“could be remedied through medical treatment that would require a leave of absence.”
Finally, the court rejected Kelley’s argument that Amazon failed to accommodate her by failing to consult with her doctor. The court ruled that while consulting with an employee’s doctor “is a potential method of discovering a reasonable accommodation, it is not a reasonable accommodation in and of itself.” Thus, the court affirmed the district court’s granting of summary judgment in Amazon’s favor.
With the amendments to the Americans with Disabilities Act in 2008, and the follow-up regulations that the Equal Employment Opportunity Commission passed in 2011 implementing the amendments, it is clear that the overall message for employers is to prohibit discrimination against qualified individuals with disabilities who want to work and who are qualified to work. Since that time, it often seems that employers are having to and/or are assuming that employees who raise a concern of a medical condition must immediately jump into the discussion about the need for an accommodation.
This case is a good reminder that in defining who is a “qualified individual,” the ADA looks at whether an individual with a disability is qualified for the specific position at issue, not at whether he or she is qualified for work in general. The Ninth Circuit confirmed that Jodie Kelley was not qualified to perform her customer service job because of her performance record. Thus, the accommodation was unnecessary.
While this decision is a good outcome for the employer, caution should be used to examine whether employees are able to perform their jobs and are therefore “qualified individuals” as more often than not the scope of the ADA is broad. A qualified individual with a disability is an “individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and who, with or without reasonable accommodation, can perform the essential function of such position”. The definition of the term “qualified individual with a disability” reflects this remedial purpose. Accordingly, the definition 1) requires an individualized assessment of a particular individual’s capabilities; 2) focuses on the essential functions of a particular position; 3) looks at particular positions, not work in general; and 4) considers whether a person can work with reasonable accommodations.
Employers in a similar position to the one in this case should consider whether there is a written job description of the essential functions of the job. After you have confirmed that the employee is qualified despite the medical restrictions, engage in the interactive process. Finally, do not forget to document your findings!