Nurses Face Disability Discrimination Masked As Safety Concerns

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6th Dec 2016

America’s nurses are the beating heart of our medical system.”  President Barack Obama, speaking to the American Nurses Association, June 16, 2010.  “In our hours of need, in moments where people are most vulnerable, most worried, nurses are there, doing difficult and lifesaving work.”  Id. “Often with little power or sway of their own, nurses – mostly women, historically – have been a force of will and a sense of common decency, and paved the way towards better care and a more compassionate society.”  Id. Yet our nation’s nurses face disability discrimination and failure to accommodate after they are injured doing their jobs.

Mary Green is a nurse.  She worked as a nurse for ten years for Saint Mark’s Health System.  Twice in those ten years, she injured her shoulder while positioning a patient.  The injuries were serious and required surgery but in both instances Nurse Green was able to return to work.  Thereafter, Nurse Green sacrificed her own well-being by essentially throwing herself under a 400-pound patient to prevent him from falling on the floor.  This incident also required surgery, following which, like the other times, Nurse Green sought to resume the duties to which she had devoted her life.  This time, however, her employer decided Nurse Green should not be permitted to return to work.  It decided the injuries she suffered while caring for patients caused her to become disabled and her disabilities prevented her from safely performing the functions of a nurse.  It reached this conclusion despite Nurse Green’s determination to return to work and despite her treating doctor’s clearance for her to return to work. This is disability discrimination.

Under the New Jersey Law Against Discrimination (NJLAD), it is unlawful discrimination “[f]or an employer, because of the . . .  disability . . . of any individual . . . to discharge . . . or to discriminate against such individual . . . in the terms, conditions or privileges of employment.” N.J.S.A. 10:5-12(a).

Saint Mark’s does not dispute it terminated Nurse Green because it perceived her to be disabled and believed her disability prevented her from safely performing the job.  It claims its termination of Nurse Green was justified based on safety concerns.  The “safety” defense to a claim under the NJLAD allows an employer to “consider whether the handicapped person can do his or her work without posing a serious threat of injury to the health and safety of himself or herself or other employees.”  Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 374 (1988). Saint Mark’s has the burden of proving this affirmative defense to its failure to accommodate.  A.D.P. v. ExxonMobil Research and Engineering Co., 428 N.J. Super. 518, 538 (App. Div. 2012).

“When asserting the safety defense, the employer must establish with a reasonable degree of certainty that it reasonably arrived at the opinion that the employee’s handicap presented a materially enhanced risk of substantial harm in the workplace.”  A.D.P., supra at 538, quoting Jansen, supra at 383.  In addition, the employer must conclude that the handicap will “probably” cause such an injury.  Ibid.  “The elements of the defense therefore require evaluations of the reasonableness and certainty of [the employer’s] conclusions as well as the probability of injury, all of which are fact questions that do not generally lend themselves to disposition by summary judgment.”  Id. at 539.   As the Appellate Division in the case at bar recognized, “[t]o terminate an employee based on ‘the safety defense’ without committing unlawful discrimination, ‘the employer must reasonably conclude that the employee’s handicap poses a materially enhanced risk of serious injury.'”  Slip Op. at 22-23, quoting Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 376 (1988). If they fail to show this, they have committed disability discrimination.

The safety defense is intertwined with the essential functions of an employee’s job.  Saint Mark’s claimed that lifting 50 pounds on a frequent basis is an essential function of Nurse Green’s job.  “Whether a particular function is essential is a factual determination that must be made on a case by case basis.”  Skerski v. Time Warner Cable Co., 257 F.3d 273, 279 (3d Cir. 2001), quoting EEOC Interpretive Guidance on Title I of the ADA, 29 C.F.R. pt. 1630, App. 1630.2(n) (2000).

EEOC regulations define “essential functions” as “the fundamental job duties of the employment position . . . not . . . the marginal functions of the position.”  29 C.F.R. §1630.2(n).  The EEOC regulations go on to list three reasons why a job function may be deemed essential:  (i) because the reason the position exists is to perform that function; (ii) because of the limited number of employees available among whom the performance of that job function can be distributed; and/or (iii) because the function is highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform that particular function.  Id. at (n)(2).

The EEOC regulations also list seven types of evidence that can be considered, among others, to determine whether a particular job function is essential:  (i) the employer’s judgment as to which functions are essential; (ii) written job descriptions prepared before advertising or interviewing applicants for the job; (iii) the amount of time spent on the job performing the function; (iv) the consequences of not requiring the incumbent to perform the function; (v) the terms of a collective bargaining agreement; (vi) the work experience of past incumbents in the job; and/or (vii) the current work experience of incumbents in similar jobs.  Id. at (n)(3).

In Deane v. Pocono Medical Center, 142 F.3d 138 (3d Cir. 1998), the Third Circuit refused to find in the employer’s favor on summary judgment on the issue of whether heavy lifting was an essential function of the job of a registered nurse.  Deane claimed heaving lifting was not an essential job function of a registered nurse, while her employer contended it was.  The Court “decline[d] to apply conclusive effect to either the job description or [the employer’s] judgment as to whether heavy lifting is essential to Deane’s job.”  It noted that the EEOC’s Interpretive Guidance states that the employer’s judgment as to which functions are essential and written job descriptions are two possible types of evidence for determining the essential functions of a position, but neither is dispositive.  Although courts should not second guess an employer’s business judgment, “whether a particular function is essential ‘is a factual determination that must be made on a case by case basis [based on] all relevant evidence’.”  Id. at 148, quoting 29 C.F.R. pt. 1630, app. §1630.2(n).  Looking at all the evidence, the Court found there was a genuine issue of material fact and declined to grant summary judgment to the employer.

Saint Mark’s argued “[t]he LAD does not constrain employers from determining their own job requirements.” While it may be true that an employee must perform her particular job rather than a hypothetical one, this does not give the employer carte blanche in deciding what the essential functions of that particular job are.  If the employer’s view of the issue were dispositive, then employers would be free to invent unrealistic job requirements for the sole purpose of eliminating disabled people from consideration.  And although lifting heavy patients may be an essential function of Nurse Green’s job, no one can be expected to lift a 300 or 400 pound patient without assistance.  Rather than leave the issue of what is essential entirely to the employer, the proper approach, and the one espoused by the EEOC and the federal courts, is to allow a fact finder to weigh all the considerations, including the employer’s judgment, the written job description, the amount of time actually spent performing the function, the consequences of not requiring the employee to perform the function, the work experience of past incumbents in the job and the current work experience of individuals in similar jobs.

Where there is a discrepancy as to what functions are essential, the matter should go to a jury to weigh all of the EEOC factors.  The Appellate Division in the case at bar therefore properly reversed the grant of summary judgment and remanded the case for a trial on the merits.

Saint Mark’s also argued that Nurse Green’s history of injuries constituted dispositive evidence of its reasonable basis for concluding she could not handle the heavy lifting required in her job.   Such a view not only ignored disputed issues of material fact but also threatens to create a disturbing and dangerous legal precedent which would allow employers to illegally stereotype plaintiffs as “liabilities” on account of a history of disability. Cf. Davidson v. Midelfort Clinic, 133 F.3d 499, 509 (7th Cir. 1998) (“[T]he coverage of the ADA [extends] to persons who ‘have a history of, or have been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.’ This would include people who have recovered from previously disabling conditions (cancer or coronary disease, for example) but who may remain vulnerable to the fears and stereotypes of their employers.”)

In Nurse Green’s case, the facts showed she suffered her first injury, to her left shoulder, in March 2007 when she was pulling a patient up in bed.  She reinjured her left shoulder more than a year later, while lifting the legs of a patient that weighed approximately 300 pounds.  In between those injuries, Nurse Green served countless patients safely and without injury to herself or others.  Her final injury, which occurred in February 2010, was to the cervical area of her spine and resulted when she pulled a 400-pound patient on top of her to prevent him from falling on the floor.  That injury was to a different area of her body and was the result of a heroic effort on her part to prevent injury to a patient and which presumably would have injured anyone, no matter how many pounds they were capable of lifting.

The Jansen safety defense requires probability, not possibility.  While an employee’s work and medical histories may be relevant, when viewed in the context of the facts in Nurse Green’s case, they cannot be dispositive.  Saint Mark’s did not even rebut the medical opinion of Nurse Green’s physician with the opinion of another physician.  Thus, the Appellate Division held that Saint Mark’s terminated Nurse Green “without information to reach the conclusion, with a reasonable degree of certainty, that plaintiff could not do her work as a nurse without posing a serious threat of injury to the health and safety of herself, her coworkers, or her patients” [Slip Op., p.24].  By relying on Nurse Green’s history of work-related injuries to justify its termination of her, Saint Mark’s engaged in per se disability discrimination.  It assumed, rather than proved, Nurse Green posed a safety risk, justifying their failure to accommodate.  Saint Mark’s failed to meet its substantial burden of proving “with a reasonable degree of certainty” that Nurse Green’s presumed disability “would probably cause” or “pose a serious threat of” injury to herself or others.  Jansen, supra at 374; 383.  Accordingly, the Appellate Division’s decision should not be disturbed.

This case is currently pending consideration by the New Jersey Supreme Court.

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