In an opinion straining at the bit to express hostility toward the Americans With Disabilities Act (ADA) as mildly as possible, the Sixth Circuit suggested that it is ready to re-examine its subjective intent requirement in constructive discharge cases. The case is Tchankpa v. Ascena Retail Group.
As to the first point, the opinion authored by Judge John Nalbandian takes pains to assure readers and possible litigants that it brooks no favor to the ADA or to employees suffering discrimination as a general matter, here's a sampling:
- The ADA is not a weapon that employees can wield to pressure employers into granting unnecessary accommodations or reconfiguring their business operations. Instead, it protects disabled employees from disability -related mistreatment – no more, no less.
- As Milton put it, “The mind is its own place, and in itself/ Can make a Heav’n of Hell, a Hell of Heav’n.” Our job is to confirm that the plaintiff’s work conditions were indeed hellish, or at least close to it.
Sixth Circuit law on constructive discharge is straight-forward. The existence of a constructive discharge “depends upon the facts of each case and requires an inquiry into the intent of the employer and the reasonably foreseeable impact of the employer's conduct upon the employee.” Smith v. Henderson, 376 F.3d 529, 533 (6th Cir. 2004). An employer's intent can be shown “by demonstrating that quitting was a foreseeable consequence of the employer's actions.” Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1080 (6th Cir. 1999). This Court has stated that the ultimate question in a constructive discharge case is whether a reasonable person would have continued working in the job given the terms and conditions intentionally established by the employer. Easter v. Jeep Corp., 750 F.2d 520, 522-23 (6th Cir. 1984).
The opinion suggests that the Supreme Court may have upended the employer's intent element of this proof in Green v. Brennan, 136 S.Ct. 1769 (2016). This seems a red herring and betrays a poor grasp of this area of law. If an employer knows or should know that it is compelling an employee to work in conditions in which a reasonable person would not continue working, it is fair to conclude that the intended the employee to quit. If the employer did not know of the condition or situation, it would seem incongruous that it should be held liable to something it knew nothing about. The Sixth Circuit's discussion of Green just goes off on a tangent to no discernible purpose. More troubling is the suggestion that a constructive discharge may require "hellish" work conditions, as opposed to that merely a reasonable person would find intolerable.
We should also note that the ADA does require in appropriate circumstances employers to adapt and change their operations to accommodate a disabled employee; see Does the ADA Require an Employer to Rethink its Processes?
Robert L. Abell
www.RobertAbellLaw.com
