Employment Law

• Date: 01 December 2017
• DOI: http://doi.org/10.1002/nba.30395
• Published date: 01 December 2017

10

DECEMBER 2017NONPROFIT BUSINESS ADVISOR

© 2017 Wiley Periodicals, Inc., A Wiley Company • All rights reserved

DOI: 10.1002/nba

Employment Law

Here’s a look at several recent notable lawsuits involving nonprots. Nonprots should regularly review

employment laws and their compliance efforts to avert similar issues.

Disability

Defendant’s alleged failure to

cooperate keeps suit alive

In 2008, Joseph Clemens became a public safety

dispatcher at U.S. Army base Fort McCoy.

In March 2011, Clemens had a stroke that required

immediate medical leave. One of the long-term results

of the stroke was that Clemens could not talk properly.

Clemens had not yet recovered when he spoke by

phone in May with Fort McCoy Police Chief Rob-

ert Stapel to obtain extended medical leave. In that

conversation, the two allegedly discussed possible

accommodations.

In June, treating physician Dr. Timothy Mikesell

reported to the Army that he could not predict when

Clemens would fully recover, but that he might be able

to work in a position that did not require signicant

talking.

Clemens never returned to work, and was termi-

nated in December.

He led a suit claiming disability discrimination

in violation of the Rehabilitation Act, alleging that

nobody had ever discussed: (1) relocation or reassign-

ment to another position as a possible accommoda-

tion, (2) what his qualications for reassignment were

or (3) whether there were any positions available that

would not require signicant talking.

The Army led a motion to dismiss, arguing that

Clemens had failed to allege that he was ever able to

return to work after his stroke. It contended that since

being “qualied” to work necessarily implied that the

individual was actually able to work, Clemens was not

a “qualied individual with a disability” as required

by the Rehabilitation Act.

District Judge William Conley said that in order to

succeed in his suit, Clemens was required to allege: (1)

he was a qualied individual with a disability, (2) the

Army was aware of that disability and (3) the Army

failed to reasonably accommodate it.

He explained that a “qualied individual with

a disability” meant a person with a disability who,

with or without reasonable accommodation, could

perform the essential functions of the position that

the disabled person held or desired. He also stated

that a reasonable accommodation pursuant to the

Rehabilitation Act could include job restructuring,

part-time or modied work schedules, or reassign-

ment to a vacant position.

EMPLOYEE WINS ➔ The judge said that in mak-

ing its argument that Clemens never again became

capable of working as a dispatcher, the Army had

ignored the allegations in the complaint that both

Clemens and his physician had proposed: (1) a “text

to voice” accommodation or (2) being reassigned

to a vacant position that did not require signicant

talking, either of which would have enabled him to

perform the essential functions of his job in spite of

his speech impairment. Based on those allegations,

the judge ruled that it was at least plausible to infer

that the single phone call between Clemens and Chief

Stapel did not amount to an interactive process and

that the Army did not really try to nd a reasonable

accommodation.

Judge Conley refused to dismiss the suit.

[Clemens v. Speer, U.S. District Court for the

Western District of Wisconsin, No. 16-cv-467-wmc,

06/21/2017].

Hostile work environment

Employee discovers it’s hard to prove

a hostile work environment

When Diannah Evans began working for the Il-

linois Department of Human Services in 2013, she

was 51 years old.

Evans eventually led a suit claiming age dis-

crimination. In her complaint, Evans contended

that almost from when she rst began working there,

co-workers allegedly called her names because of her

age, and made comments about how old she was on

a daily basis. Evans alleged several examples of those

remarks, such as “She is too old for those clothes,”

“She can’t have a child that age” and “How can she

be this age and her child is that age?”

Evans also claimed in her suit that a supervisor

had once asked how old she was.

The IDHS responded with a motion for summary

judgment.