- Comments made by BNSF Railway Company representatives about an employee's Parkinson's disease could lead a jury to conclude that the employer didn't reasonably try to determine whether he could perform his essential job duties safely, the 5th Circuit Court of Appeals has ruled, partially reversing a grant of summary judgment (Nall v. BNSF Railway Company, No. 17-20113 (5th Cir., Dec. 27, 2018)).
- After placing Michael Nall, a trainman, on medical leave, the company's field medical manager allegedly told him that he was "never coming back to work" and that they were just sending him medical certification paperwork to "be nice." Another company representative allegedly told the trainman's wife that "people with Parkinson's don't get better."
- While these comments were insufficient to constitute direct evidence of discrimination, there was nonetheless a fact issue on whether BNSF had engaged in a reasonable process when it disqualified the trainman from returning to work; the 5th Circuit therefore reversed a district court's grant of summary judgment on this issue.
The Americans with Disabilities Act (ADA) requires that employers assess workers with disabilities individually, rather than making decisions based on assumptions.
In Nall, the 5th Circuit said it was not clear that BNSF had acted reasonably in a) identifying the essential duties of Nall's position, and b) concluding that Nall could not perform those duties safely. In fact, Nall had submitted doctors' notes certifying his ability to work and alleged that the employer later added requirements to his list of job duties — requirements that would be directly affected by Parkinson's disease. This "casts doubt on the legitimacy of BNSF's concerns," the court said.
The opinion illustrates why experts say it's important to review job descriptions regularly for accuracy and completeness, before a possible bias claim arises. Additionally, while job descriptions are often reviewed only when a new position is created or an existing position opens up, the process should be ongoing so that the job descriptions for posts held by long-tenured employees don't fall through the cracks.
Similarly, experts recommend training for managers and anyone else who might be involved in leave or accommodation discussions; managers often cause employment law violations, experts say, and even a stray comment by a decisionmaker can doom an employers' defense.