Employment Law

• Date: 01 December 2016
• DOI: http://doi.org/10.1002/nba.30263
• Published date: 01 December 2016

10

DECEMBER 2016NONPROFIT BUSINESS ADVISOR

© 2016 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 Discrimination

Doctor’s note unravels former

employee’s suit

Ricky Fairrow was employed as a truck driver

with the sanitation department of the city of Madi-

sonville. In April 2010, Fairrow attended a meeting

of all sanitation department employees that was also

attended by Mayor Will Cox. According to Fairrow,

Cox made a comment to Fairrow in front of the

group that he took personally. Not long after that,

Fairrow and Cox exchanged words in a stairway.

The next week, Cox told Fairrow he was danger-

ously close to being red.

Fairrow immediately sought medical leave under

the Family and Medical Leave Act. He was initially

granted leave, which was scheduled to end in Sep-

tember. However, the city later extended it by eight

weeks until November.

In October, Fairrow submitted a note from his

doctor that stated he would “never resume his work

with the sanitation dept. due to his mental illness

arising from on the job stress there.”

On Nov. 10, the city terminated Fairrow because

he did not return to work.

Fairrow led a suit asserting disability discrimi-

nation, claiming that his psychiatric diagnosis was

the reason why he was red. The trial judge granted

summary judgment in favor of the city, and Fairrow

led an appeal.

The city argued in the appellate court that Fairrow

was not qualied for the position he held because he

could not return to work, as evidenced by the doc-

tor’s note that announced a permanent inability to

continue in his work with the city. It also contended

that the trial judge had ruled correctly because Fair-

row failed to request any type of accommodation,

instead choosing to announce that he simply could

not return to work at all, which both disqualied him

for his position and also justied his termination.

The panel observed there was nothing in the re-

cord to suggest his discharge was motivated by any-

thing other than his announced and demonstrated

unwillingness—or inability—to return to work when

required. It also wrote that Fairrow himself stated

that he did not require any kind of accommodation,

and that he was simply following the advice of his

physician in not returning to work.

EMPLOYER WINS ➔ The court agreed that

Fairrow lacked a basic qualication for his con-

tinued employment as a truck driver for the city

because attendance and the physical ability to show

up and perform a given task were objective and

basic qualifications for employment. The panel

explained it was impossible for Fairrow to perform

the requirements of his position when he would not

even show up for work. Assuming that Fairrow’s

apparent inability—or unwillingness—to attend

work was expressly due to his psychiatric diagnosis

and his experiences at work, the court ruled that

they disqualied him for his position. It afrmed

the ruling of the trial judge, stating that an essential

element of Fairrow’s disability discrimination claim

was missing.

[Fairrow v. City of Madisonville, Kentucky Court

of Appeals, No. 2014-CA-001686, 06/03/2016].

Discrimination

Former employees turned out of court

Michael Jackson and James Moore—black

males—were longtime employees of a nonprot

known as The Education and Employment Minis-

try. Over the years, Jackson served as case manager

and associate director. Moore was the director of

education.

In 2011, TEEM restructured its staff because of

nancial difculties. The employees it red received

severance pay.

The same year, the United Way placed TEEM

on probation because of the loss of government

contracts, a failure to adequately address funding

problems, the need for improved participation in

United Way functions and training, and a need for

regular communication with the United Way. As

a result, TEEM’s 2012–2013 United Way funding

was made available on a month-to-month basis

dependent upon its implementation of a proposed

improvement plan.

In late 2012, even though Executive Director

Tony Zahn was still being paid while on extended