EEOC v. McLeod Health, Inc., No. 17-2335 (4th Cir. Jan. 31, 2019)

| Feb 1, 2019 | Daily Developments in EEO Law |

As often as discrimination cases turn on hostility towards protected-class employees, it pays to remember that the same laws apply no less to discrimination motivated by other reasons, such as misguided paternalism. Here, the Fourth Circuit sends a case back for a trial where a hospital believed that 28-year-veteran employee could no longer safely navigate its campus.

EEOC v. McLeod Health, Inc., No. 17-2335 (4th Cir. Jan. 31, 2019): Claimant Cecilia Whitten was born with “postaxial hypoplasia of the lower extremity,” a condition that made walking difficult. She worked as “editor of McLeod’s internal employee newsletter.” Reportedly, despite her condition, “Whitten satisfactorily performed her duties as editor of McLeod’s employee newsletter for almost three decades.”

But Whitten began falling more often and having more difficulty with locomotion. Her manager, named Swindler, recommended – and the hospital agreed – that “Whitten needed to undergo a fitness-for-duty medical exam.” This was not because the employer was “particularly concerned with Whitten’s performance on the job,” but rather to assure that Whitten could “safely get to different locations to do her stories.” Whitten complied, feeling she had no choice.

Following a functional capacity examination, Whitten was placed on medical restrictions on her movement. Despite Whitten requesting accommodations to meet these limitations, the hospital instead placed her on leave and eventually fired her, supposedly “because her proposed accommodations would prevent her from traveling to the company’s various campuses to collect stories and take photographs, thereby nullifying the purpose of her position.”

The district court granted summary judgment on the EEOC’s illegal medical exam claim (42 U.S.C. § 12112(d)(4)(A)) and wrongful discharge claim, but the Fourth Circuit reverses.

The crux of both claims on appeal was whether navigating the hospital campuses was an essential function of the job. The hospital’s defense was that it ordered the “medical exam because it reasonably believed, based on objective evidence, that Whitten could not navigate to or within its medical campuses without posing a direct threat to herself.”

The Fourth Circuit finds the evidence in equipoise. Among other things, “McLeod’s own written description of Whitten’s position contains no mention of navigating to and from company events or conducting in-person interviews.” Additionally, Whitten testified that “although she collected better content by attending company events and conducting in-person interviews, she did not think that either was ‘necessarily’ a requirement of her job.” Indeed, “Whitten was able to conduct interviews and collect other forms of content over the phone.”

With respect to the medical-exam claim, the panel holds in addition that “[a] reasonable jury could conclude that when McLeod required Whitten to take a medical exam, the company lacked a reasonable belief – based on objective evidence – that Whitten’s medical condition had left her unable to navigate to and within the company’s campuses without posing a direct threat to her own safety.” Interpreting the record in the light most favorable to the EEOC, “it was not reasonable for McLeod to believe that she had become a direct threat to herself on the job simply because (a) she had fallen multiple times recently and (b) her manager thought she looked groggy and out of breath.”

On the termination claim, the panel reverses on the same basis. “[I]t is not certain that navigating to and within McLeod’s campuses was essential to Whitten’s job. By the same token, it is not certain that Whitten’s medical exam was lawful. Since the district court’s grant of summary judgment assumed that those points were not in dispute, we cannot affirm on the basis of the district court’s reasoning.”

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