Three Worrisome Rulings From Other States in 2017 – And One We Love

Even though decisions from other jurisdictions do not apply to Minnesota employers, those rulings are important. If a case arises in Minnesota for which there is no judicial precedent, our judges often will look to decisions in other courts for guidance.

Here are three 2017 decisions from other jurisdictions that we hope our Minnesota courts overlook, and one we can’t wait for them to apply.

One Word is All It Takes

In a post entitled In Some Cases Even a Single Word Can Create a Hostile Environment, we wrote about two African American workers who sued for racial harassment after their supervisor threatened to fire them if they “[N-word]-rigged” the task to which they were assigned.

The Third Circuit Court of Appeals noted that the standard for harassment is whether the conduct was “severe OR pervasive” and that even a one-time use of the offending word was severe enough to allow the workers to proceed with their claim.

Nobody doubts that the language was horrid and offensive but have we really reached the point where a single utterance of it is sufficient to create an actionable legal claim? The answer will be yes if the courts in Minnesota decide to borrow this Third Circuit precedent.

Accommodation for Medical Marijuana Creates a Buzz

While some states have legalized medical marijuana, it is still a banned substance under federal law so state and federal courts continue to rule that employers need not accommodate an employee’s use of medical marijuana.

As we explained in Mass. Court Blazes New Trail On Employee Medical Marijuana, however, the Massachusetts Supreme Court ruled last year that while medicinal marijuana use at work is not protected, their state law does protect the right to use it while off duty. As such, a positive drug test reflecting off-duty use of medicinal marijuana should not result in a job-related penalty to the employee.

The Massachusetts court did not say that employees have to be allowed to come to work stoned. Rather, marijuana use should not be an automatic disqualifier from work and that the ADA’s requirement of an interactive process must be followed to determine whether off-duty use of medical marijuana can be reasonably accommodated.

A Simple Handshake Will Do

In Court Embraces Claim That Workplace Hugging is Sexual Harassment, we reported that the Ninth Circuit Court of Appeals ruled that a supervisor’s habit of greeting his female subordinate with a hug on a regular basis was beyond “ordinary workplace socializing.” Instead, it could be viewed as severe enough to alter the conditions of the subordinate’s employment. Therefore, the employee could proceed with a hostile work environment sexual harassment claim.

The court reminded us to look at the context of the behavior – there was evidence that the supervisor hugged other women but only greeted the men with handshakes. In addition, there was testimony that the supervisor kissed the employee on one occasion and that she suffered from stress and anxiety from his behavior.  The big issue, however, was the hugging and that was enough to be considered a hostile work environment without any other overt sexually-oriented behavior.

If You Leave, You Can’t Come Back

Here’s the one we are waiting for.  In a post entitled Court Says Long Term Leave is Not a Reasonable Accommodation, we wrote about how the Seventh Circuit Court of Appeals sided with an employer who fired a worker seeking additional time off for medical reasons after his time under the Family and Medical Leave Act (FMLA) expired.  The Court explained that the Americans with Disabilities Act (ADA) “is an antidiscrimination statute, not a medical-leave entitlement.” As such, the duty to provide reasonable accommodation just encompasses workplace modifications that that will allow the employee actually to perform their work.  An employee who is not able to work is not a “qualified individual” for whom accommodation is required.

The court did leave open the question of whether a short term absence could still be a reasonable accommodation under the ADA in the nature of a part-time or modified work schedule.  However, they were clear that the need for a medical leave spanning multiple months is outside the protections of the ADA because“[l]ong-term medical leave is the domain of the FMLA.”

If Minnesota courts adopt this reasoning, we will likely see a seismic shift in the way that employers in this state deal with long term medical leaves.  Until then, remember that the Equal Employment Opportunity Commission (EEOC) continues to interpret the ADA as requiring consideration of long term leaves as possible accommodations, and courts typically give substantial deference to the EEOC’s interpretation of the ADA.  Therefore, Minnesota employers should continue to consider longer terms leaves as part of the interactive process in determining whether and to what extent a disabled worker can be accommodated.

Bottom Line

We hope that in the coming year, the federal and state courts in Minnesota will exercise good judgment in determining which lines of reasoning to borrow from other jurisdictions and which ones to reject.  We will be keeping track.