The 6th Circuit recently overturned a lower court’s dismissal of an employee’s disability and age discrimination claims and sent the case back for trial. The employee, who is unable to lift more than 35 pounds because he has scoliosis, was discharged after nearly 40 years on the job when his supervisor discovered that his condition prevents him from performing the duties outlined in his job description.
“David” was employed at a Bi-Lo supermarket as a Stock Clerk for 38 years. He worked on the third shift as part of a three-person team tasked with stocking shelves each night. One morning, the store director arrived at the end of the third shift and asked why the team hadn’t finished shelving all the product. He was told that David had a “bad back,” and the other two members of the team “had to help with the heavy stuff to get it done.” It was the first and only time that the team was unable to complete its shelving tasks.
David was diagnosed with scoliosis when was a teenager. He and his coworkers had an informal arrangement under which the coworkers did the heavy lifting while David placed products on the shelves. Despite the written job description for the stock clerk position, which indicated that the job requires “frequent” lifting of objects weight 20 to 60 pounds, David managed to work successfully with that accommodation from his colleagues.
Following the incident in which all the product wasn’t shelved, David was given the job description and a physical capabilities testing sheet and told that the sheet had to be completed by a physician. The doctor capped the weight David could safely lift at 35 pounds.
As a result, he was placed on a leave of absence and told that he should take his sick leave, use his vacation pay, and apply for short-term disability to bridge the gap until he turned 62, when he could “start drawing Social Security and start getting [his] retirement check.”
Bi-Lo told David that he couldn’t return to work unless he was cleared by a doctor to lift at least 60 pounds. The store refused his request to return to work with the same accommodation he had previously received from his coworkers. As a result, he filed a lawsuit alleging Bi-Lo had discriminated against him on the basis of his disability and his age in violation of state and federal law.
After concluding that the ability to lift more than 35 pounds is an essential function of the stock clerk position, the lower court ruled in favor of Bi-Lo and dismissed David’s claims on summary judgment, thereby avoiding the need for a trial. David appealed that decision to the 6th Circuit.
The appellate court reversed the lower court’s decision and sent the case back for trial. The court of appeals determined that contrary to the lower court’s findings, a reasonable jury could conclude that the ability to lift more than 35 pounds isn’t an essential function of Bi-Lo’s stock clerk job and that age was a motivating factor in its decision to terminate David’s employment. There was considerable evidence to suggest that despite the lifting requirements outlined in the job description, the ability to lift more than 35 pounds isn’t an essential function of the stock clerk position.
First, the job description was drafted 33 years after David began working as a stock clerk, and he had performed his job successfully for 5 years after the implementation of the job description before his restriction was discovered.
Second, his immediate supervisor testified that “heavy lifting was not an essential function of [his] job, and [he] did his job fine.” Third, no evidence other than the job description suggested that heavy lifting comprises a significant portion of the stock clerk job. Testimony established that the percentage of stock David was unable to lift was very small.
Finally, because David’s colleagues divided up the stocking work so that he was able to do his job, the impact on the store’s operations was minimal. In his 38 years at Bi-Lo, David’s disability had prevented the stocking team from finishing its work only once.
In addition, the court was troubled that Bi-Lo refused to allow the continuation of the informal accommodation David’s coworkers had provided—the arrangement that they lifted the heaviest items while he stocked shelves—and instead removed him from a job in which he had successfully worked for nearly 40 years.
There was no evidence that the informal accommodation had negative consequences for Bi-Lo’s business operations, and both of David’s colleagues testified that the accommodation wasn’t a problem. As a result, even if the ability to lift more than 35 pounds is an essential function of the stock clerk job, there was evidence from which a jury could reasonably conclude that David could perform his job with a reasonable accommodation.
Similarly, there was evidence to support David’s age discrimination claim. Bi-Lo instructed him to use short-term disability to bridge the gap until his 62nd birthday, when he would be eligible to “start drawing Social Security and start getting [his] retirement check.” He was also replaced by someone significantly younger. That was enough, according to the court, for a jury to reasonably conclude that his discharge was motivated by age bias. [Omitted] v. Bi-Lo, LLC, 16-5080 (6th Cir., Oct. 21, 2016).
Employers should be careful, both about relying on written job descriptions when determining workers’ essential functions and about being inflexible in offering accommodations to disabled employees. You also should be aware that an otherwise well-meaning comment about retirement can be used as evidence of age discrimination.
In making the decision to terminate David’s employment, Bi-Lo relied almost exclusively on a job description written after he had performed his job successfully for several years. Testimony (as well as David’s performance history) established that the ability to lift more than 35 pounds really isn’t a significant part of the stocking job and the job description was incorrect.
Testimony also established that the informal accommodation David’s colleagues provided didn’t have any negative impact on Bi-Lo’s operations, and it was therefore reasonable and should’ve been continued.
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