Anxiety over Reasonable Accommodation under the ADA for Social Anxiety Disorder

Employers might be just a bit more anxious after learning that the Equal Employment Opportunities Commission (“EEOC”) defined the “ability to interact with others” as a major life activity, bringing social anxiety disorder into the scope of protection afforded by the Americans with Disabilities Act (“ADA”). The Fourth Circuit, in the case of Jacobs v. N.C. Administrative Office of the Courts,[1] recently agreed with the EEOC that social anxiety disorder may be a disability for ADA purposes. For practical purposes, however, the important takeaway in this case is that reasonable accommodation requests should never be taken lightly and all decisions that adversely affect employees should come with ample documentation.

Tablet with diagnosis anxiety disorder and stethoscope.Christina Jacobs worked as an office assistant at the Administrative Office of the Courts (“AOC”) before being promoted to deputy clerk. She was then assigned to assist customers at the front counter, a job assigned usually to the most junior deputy clerks. She then began to experience extreme stress and panic attacks while working at the front counter, all symptoms of her previously-diagnosed social anxiety disorder. She explained her condition and her symptoms to her supervisor, discussing her history with the disability. Her supervisor suggested she seek treatment and relayed the conversation to her own supervisor, who made notes for Jacobs’s personnel file. Jacobs did seek treatment, but then sent an email to her three supervisors that once again disclosed her disability and asked for an accommodation. Jacobs was terminated three weeks later for allegedly poor performance and filed a charge with the EEOC claiming the firing was in retaliation for the accommodation request. The Fourth Circuit reversed the District Court’s decision in favor of the AOC, confirming the EEOC interpretation of the ADA is it pertains to the ability to interact with others as a major life activity.

While the Fourth Circuit’s holding that Social Anxiety Disorder can be a disability under the ADA is novel, there are at least two other takeaways for employers. First, Jacobs worked a position with the AOC where she was one of thirty clerks with the same title and job description, and only four to five of those clerks were assigned to front desk work. This assignment was generally based more on seniority than skill. The other clerks performed tasks that did not require interaction with the public, so the likelihood of a reasonable accommodation was strong. Employers can look to this as an example of how not to handle reasonable accommodation requests – not only did the employee clearly communicate to her supervisor her diagnosed disability and ask for a reasonable accommodation, it appears that the accommodation in question could have been granted easily, maybe even in the absence of an actual diagnosis. In short, the employer had no reason not to work with the employee to accommodate her disorder, and this may have had as much bearing on the outcome before the court as any other factor.

The second key point in the decision is the repeated failure by the AOC to document almost anything related to Jacobs. The witnesses for the AOC testified that Jacobs had performance issues and was a poor employee long before she received assignment to the front counter, but the AOC had no documentation to back any of it up. Every instance of purported misconduct on the part of Jacobs – for instance, sleeping at her desk or an altercation with another employee – was conveyed through testimony in the case, and rather unpersuasively. At no point could the AOC produce a single piece of documentation to show that Jacobs had performance issues. Employers should look to this case as a study, again, in how not to conduct adverse employment actions, especially in light of a request for a reasonable accommodation. Every performance issue or work-related problem concerning an employee should be well-documented in that employee’s personnel file before taking adverse actions towards that employee. It is particularly striking that the allegations made by the AOC as to Jacobs’s performance in the job may have been sufficient to overcome her claim of retaliatory firing, but the AOC had no actual documented proof. The notes the AOC did have, however, were directly contradictory to the AOC’s testimony that they were not apprised of Jacobs’s disability.

If the holding in this case is making you as an employer anxious, contact the attorneys of McBrayer, McGinnis, Leslie & Kirkland, PLLC for advice on how to handle employee requests for accommodation, as well as the types of documentation all employers should keep for all employees. The Jacobs case is a cautionary tale of compliance for employers, but we can help prevent you from making the same mistakes.

Amy CubbageAmy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or

This article is intended as a summary of state and federal law and does not constitute legal advice.


[1] Jacobs v. N.C. Admin. Office of the Courts, No. 13-2212 (4th Cir. Mar. 12, 2015):

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What You Didn’t Say Can Be Used Against You in a Court of Law: Perceived Speech is Not Protected Speech

What some might charitably consider a loophole in First Amendment protections of public employees received deferential treatment recently by the Third Circuit. In what seems like an upside-down scenario, the Third Circuit upheld the ability of a public employer to fire an employee for speech that he or she did not actually speak, while that employee likely would have had a claim against his or her employer had he or she actually engaged in the speech that didn’t take place. This confusing result is not the first of its kind, either, and public employees are now on uncertain ground as to whether what they don’t say can be used against them.Vertical Image Of The The First Page Of The Us Bill Or Rights On

In Heffernan v. City of Paterson,[1] a police officer stopped by the campaign headquarters of the former chief of police to pick up a yard sign for his bedridden mother. Not only was the sign not for himself, but he did not even live in the jurisdiction of the election. Nevertheless, a fellow officer spotted him leaving the headquarters with sign in tow and reported the officer’s “overt involvement” with the campaign to unseat the current mayor. He sued the city under a § 1983 action,[2] claiming the firing was a violation of his First Amendment rights of free speech and freedom of association. Both the District Court and the Third Circuit Court of Appeals denied his claim.

The Third Circuit’s reasoning is that the First Amendment only protects the actual speech and actions of an individual. An adverse employment action based only on the perception of the employee’s speech does not violate the employee’s civil rights, as the employee did not actually engage in protected activity. This case follows prior Third Circuit jurisprudence on the subject, but the result could be described as bizarre – the Court upholds the ability of the governmental bad actor as long as the assumptions on which the action was taken were wrong. Mere perception from an outside party that the activity took place is not enough to trigger a violation of a public employee’s civil liberties. The Ninth Circuit, Seventh Circuit and Fifth Circuit have all had similar holdings.

The First, Sixth (which includes Kentucky) and Tenth Circuits have all reached the opposite conclusion, however, setting up a circuit split. In the case of Dye v Office of the Racing Commission,[3] a group of employees filed a retaliation suit against their former employer who fired them over the misperception that they were of an opposing political bent and supported the employer’s opponent. The Sixth Circuit there accepted the retaliation claim, saying, “An employer that acts upon such assumptions regarding the affiliation of her employees should not escape liability because her assumptions happened to be faulty.”[4]

The Supreme Court has yet to give the final word on the matter, so public employers and public employees should both tread cautiously in the areas of political speech and affiliation. Perceived speech is currently protected activity in some jurisdictions, clearly not protected activity in others and still others have yet to definitively settle the issue. If you are a public employer with questions about how your policies might affect the protected activities of your employees, contact the attorneys of McBrayer, McGinnis, Leslie & Kirkland, PLLC.

Preston WorleyPreston Clark Worley is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Worley concentrates his practice in employment law, land development, telecommunications, real estate and affordable housing. He is located in the firm’s Lexington office and can be reached at or at (859) 231-8780.

This article is intended as a summary of  state and federal law and does not constitute legal advice.



[1] Heffernan v. City of Paterson, 39 IER Cases 1105, 2015 BL 14920 (3d Cir. 2015).

[2] Civil Rights Act of 1871 (42 U.S.C. § 1983)

[3] Dye v Office of the Racing Commission, 702 F3d 286, 300–01 (6th Cir 2012)

[4] Id. at 11

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What Employers Should Know about the FMLA and Same-Sex Marriages under New Department of Labor Rules

After the 2013 Supreme Court decision in United States v. Windsor, federal agencies have been moving to align federal policies and procedures with the holding of that case. The Court held, basically, that same-sex marriages performed in states where those marriages are legal are valid, legal marriages for purposes of federal law. To that end, the Department of Labor (“DOL”) promulgated a final rule on February 25th, 2015 that revised the regulatory definition of the word “spouse” to include same-sex spouses from legal marriages to eligible employees for purposes of the Family and Medical Leave Act (“FMLA”). The final rule becomes effective on March 27th, 2015.

Wedding Rings 3DFMLA provides unpaid, job-protected leave to eligible employees of covered entities for certain family or medical reasons. (For more on basic FMLA eligibility, please view this earlier post on the subject.) The employee then may use this leave to care for an ill spouse or family member, so the definition of spouse is crucial in this instance.

The DOL’s Final Rule makes two specific changes to FMLA regulations. First, the rule’s definition of spouse now expressly includes an individual in a lawfully-recognized same-sex marriage. The rule also recognizes spouses from lawful common law marriages and marriages performed outside the U.S. if the marriage could have been entered into in at least one state.

The second change will likely be more controversial – the DOL has changed the definition of spouse from a “state of residence” rule to a “place of celebration” rule for purposes of the validity of the marriage.[1] The import of this is that a court will look to the law of the location of the celebration of the marriage to determine its validity, rather than to the state of residence of the parties. In practical terms, this means that an eligible employee with a same-sex spouse who resides in a state where same-sex marriage is not currently legal will be eligible for FMLA leave to care for that spouse if their marriage was valid in the place it was celebrated.

This development may come as a surprise to employers in states where same-sex marriage bans are currently in effect, such as Kentucky. Employers accordingly should review their FMLA policies and train staff to conduct appropriate inquiries into the validity of marriages of same-sex employees when FMLA leave is triggered. If you need help reviewing your FMLA policies or creating a training plan for compliance with the new FMLA rules, contact that the attorneys of McBrayer, McGinnis, Leslie & Kirkland, PLLC.

Preston Worley

Preston Clark Worley is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Worley concentrates his practice in employment law, land development, telecommunications, real estate and affordable housing. He is located in the firm’s Lexington office and can be reached at or at (859) 231-8780.

This article is intended as a summary of  state and federal law and does not constitute legal advice.

[1] 29 CFR §§ 825.102 and 825.122(b)

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E-Cigarettes and Workplace Smoking Policies: To Ban or Not to Ban, that is the Question

Woman Smoking With Electronic CigaretteSmoking in the workplace is slowly becoming an antiquated notion. Federal and state laws ban smoking in some places, and an increasing patchwork of local ordinances decreases the availability of indoor and even outdoor smoking in some circumstances. Complicating matters, as it usually does, is the rise of new technology that straddles the line between permissible and impermissible conduct – the e-cigarette. The question employers now have to struggle with is whether these devices, which purport to alleviate the harmful effects of smoke on both the user and those inhaling second-hand, should fall under broad workplace bans on smoking.

As a preliminary matter, local smoking ordinances that explicitly include e-cigarettes provide the easiest answers. For instance, Lexington, Kentucky, amended an indoor smoking ban to include electronic cigarettes as part of its ban.[1] However, other local ordinances that have enacted smoking bans that do not exclude e-cigarettes pose a more difficult challenge. Employers in these instances should err on the side of caution and assume e-cigarettes are included in the smoking band unless specifically excluded.

In workplaces that are not under a general legal ban on smoking, however, policies on smoking in the workplace are still largely up to the employer – there is no law that prohibits a workplace from banning e-cigarettes. Employers can regulate many aspects of employee behavior such as cellphone use or internet surfing, and workplace anti-smoking policies fall under these types of activities. When an employer chooses whether to allow e-cigarettes in the workplace, it should communicate the decision explicitly to the employees. A direct statement either way is necessary to clarify policy, which is especially important in light of antidiscrimination laws that protect smokers in Kentucky.

Under the law of Kentucky and a few other states, smokers are a protected class of purposes of hiring, firing and other employment actions. While these provisions have not been tested as to e-cigarettes, employers should be keenly aware that adverse employment decisions taken against e-cigarette users because of e-cigarette use outside the course of employment could very well run afoul of these antidiscrimination laws. These laws do, however, provide that the employee must comply with workplace policies regarding smoking, so clarity is key. Employers should also take care when considering an absolute ban on smoking of any kind during the workday itself – those with an addiction to nicotine could potentially trigger protections of the Americans with Disabilities Act that require reasonable accommodation on the part of an employer.

If you need help in determining how your company should treat the use of e-cigarettes in the workplace, contact the attorneys of McBrayer, McGinnis, Leslie & Kirkland, PLLC.

Luke Wingfield Luke A. Wingfield is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Wingfield concentrates his practice in employment law, insurance defense, litigation and administrative law. He is located in the firm’s Lexington office and can be reached at or at (859) 231-8780. 

This article is intended as a summary of federal and state law and does not constitute legal advice.

[1] Lexington-Fayette Urban County Government, Ky., Code of Ordinances §§14-97 to14-104 (2003 – Amended 2008, 2014)

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Is a Company’s Release of Claims a Form of Retaliation under Federal Anti-Discrimination Laws? EEOC v. Allstate

The EEOC may have taken enforcement of anti-retaliation provisions of antidiscrimination laws a step too far the Third Circuit ruled in February, and companies transitioning a work force from employees to independent contractors should be pleased at the results. EEOC v. Allstate drew a line between what now counts as retaliation by a company in the face of federal antidiscrimination laws and what is merely a post-termination transaction between an employer and an employee.

The case has a convoluted backstory, but it boils down to a few simple elements. Allstate began changing the employer-employee model of its company in the nineties, and in 1999, it chose to move to an “Exclusive Agent” model whereby its agents became independent contractors rather than employees. It terminated its remaining agent employees, offering them one of four choices in the termination, one of them being a continued business relationship with the company as an independent contractor. To take this option however, Allstate required that the terminated employee sign a waiver of all claims relating to his or employment against Allstate, including federal antidiscrimination laws. Several employees filed charges with the EEOC, which sued Allstate under the theory that the requirement of the waiver of claims constituted a form of retaliation under the same antidiscrimination laws. The underpinning of this claim was that the waiver constituted a withholding of the privilege of the employment – the ability to continue a career with Allstate – if the employee refused to release all claims. Employees who refused to sign the waiver were involved in “protected opposition activity”[1] under the EEOC’s theory, and Allstate’s refusal to continue a relationship with them constituted retaliation. The District Court and the Third Circuit disagreed.

Hand With Pen And Eyeglasses Over AgreementThe crux of the opinion is that a basic tenet of employment law is that “employers can require terminated employees to release claims in exchange for benefits to which they would not otherwise be entitled.”[2] The overriding factor here is that the company terminated the employees – their direct employment would not continue. They were, however, being offered a chance to work with the company in a different way. This wasn’t a benefit of employment with the company, the court reasoned, but a post-termination benefit extended by the company given as consideration for the waiver of claims.

The court’s holding makes sense in light of the anti-retaliation provisions of antidiscrimination laws themselves. These provisions are designed to protect classes of individuals from improper retaliation when an employee performs some form of protected activity, such as filing a claim of discrimination against the employer or participating in an investigation. There are circumstances where a case similar to Allstate might trip these protections, for example where a company perceives a potential series of claims under antidiscrimination laws and therefore requires all employees to sign a waiver of claims or lose their jobs. That example is far closer than the Allstate case to a textbook definition of retaliation. Of course, the EEOC has already issued guidance on this subject[3], stating that protected rights of employees are non-waivable, as employers may not interfere in any way with the protected rights of employees. The EEOC has consistently maintained that these waivers are impermissible, but the Third Circuit has drawn a line on this presumption when the waiver occurs after the termination of employment and where the company confers a benefit on the signer he or she is not otherwise entitled to.

Employers (in the Third Circuit, at least) can read this case as a bit of pushback against the EEOC’s interpretation of waivers of claims, as well as a suggestion that post-termination dealings with employees might have more breathing room than previously thought. For more information on the EEOC’s interpretation of waiver of claims and how they affect employers, please contact the attorneys of McBrayer, McGinnis, Leslie & Kirkland, PLLC.

Luke Wingfield Luke A. Wingfield is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Wingfield concentrates his practice in employment law, insurance defense, litigation and administrative law. He is located in the firm’s Lexington office and can be reached at or at (859) 231-8780. 

This article is intended as a summary of federal and state law and does not constitute legal advice.

[1] EEOC v. Allstate Ins. Co., 2015 U.S. App. LEXIS 2330, 1 (3d Cir. Pa. Feb. 13, 2015) at 9, citing the District Court opinion

[2] Id. at 12

[3] EEOC Notice No. 915.002 (4/10/97)

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What Employers under Collective Bargaining Agreements Should Know about the Decision in M&G Polymers v. Tackett

Recently, the United States Supreme Court undertook a significant course-correction in the vesting of retiree health benefits under collective bargaining agreements (“CBAs”). In January of this year, the Supreme Court decided M&G Polymers USA, LLC v. Tackett, and unanimously struck down three-decades-old precedent from the Sixth Circuit. Known as the “Yard-Man inference” from the case that first created the rule, UAW v. Yard-Man, Inc., the Sixth Circuit established an inference that retirement health care benefits were intended to vest for life, unless there was clear language to the contrary in the CBA. In a clear win for employers, the Supreme Court determined that such a presumption was in clear contradiction to basic principles of contract law.Closeup of Management and Labor handshake in front of building a

“Vested” benefits are retirement benefits to which an employee has a nonforfeitable claim, and thus, is entitled to keep and are not subject to change. Courts have long struggled with how to interpret CBAs that provide retiree welfare benefits, but are silent as to the duration of these benefits. Specifically, the issue before the Supreme Court in M&G Polymers was whether retiree health care benefits survive the expiration of a collective bargaining agreement.

Federal employment laws such as the Employee Retirement Income Security Act (“ERISA”) and the Labor Management Relations Act (“LMRA”) do not provide guidance as to how these benefits vest in this circumstance. ERISA, for example, requires pension plan benefits to vest after a certain number of years, but is silent as to what happens under a CBA. The Sixth Circuit solved this problem by inferring that a CBA intends to vest retiree benefits for life upon the employee’s retirement, absent clear language to the contrary. However, other federal circuits generally rejected the Yard-Man inference, requiring affirmative language in the CBA evidencing an intent for retiree health care benefits to vest.

Settling the matter once and for all, the Supreme Court expressly rejected the Sixth Circuit’s Yard-Man inference, stating, “We disagree with the Court of Appeals’ assessment that the inferences applied in Yard-Man and its progeny represent ordinary principles of contract law. As an initial matter, Yard-Man violates ordinary contract principles by placing a thumb on the scale in favor of vested retiree benefits in all collective-bargaining agreements. That rule has no basis in ordinary principles of contract law. And it distorts the attempt ‘to ascertain the intention of the parties.’” In sum, the Supreme Court took issue with the idea that courts would construe ambiguous language in CBAs to create lifetime obligations for employers.

This case finally provides courts in the Sixth Circuit, and elsewhere, guidance on the proper interpretation of ambiguous language in CBAs, and enables employers and unions to more effectively bargain over retiree health benefit terms Not only does the Supreme Court’s decision resolve a circuit split, giving consistency to employers who operate across different circuits, it also brings durational clauses in CBAs back into consideration to determine the terms of the agreement between the parties. Courts must now use ordinary contract principles when interpreting a CBA, and courts may not infer that benefits vest in the absence of specific language to that effect.

This is a monumental change in Sixth Circuit jurisprudence, and all employers in Kentucky, Ohio, Tennessee, and Michigan should watch this case on remand. Employers who have erred on the side of caution and assumed the Yard-Man inference applied to their own CBAs might now be able to review those agreements under a lesser burden. If you need to take a fresh look at your CBA under the new rules, do not hesitate to contact the attorneys of McBrayer for assistance in determining your obligations.

Amanda StubblefieldAmanda B. Stubblefield joined McBrayer as an Associate in 2014 as a member of the litigation department. She received her J.D. from the University of Kentucky College of Law in May of 2014 and was elected to the Order of the Coif. Ms. Stubblefield focuses her practice on general litigation, administrative law, and employment law.

This article is intended as a summary of state and federal law and does not constitute legal advice.

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Must Gluten-free Be Free? What You Should Know About Celiac Disease and the ADA

Restaurants nationwide are beginning to offer gluten-free alternatives to regular menu items. This is welcome news to those long suffering from celiac disease, a chronic and serious immune reaction to eating gluten, a protein that is found in wheat, barley and rye. The National Foundation for Celiac Awareness cites a statistic that one out of every 133 Americans has celiac disease. While that number seems small, that means that a busy restaurant will likely encounter at least one customer with celiac disease every few days at the least, and quite often daily. Many restaurants that do provide gluten-free options, however, charge an added fee for the dish. This raises a few important topics of note for those with celiac disease – whether celiac disease is a “disability” that requires accommodation under the American with Disabilities Act (“ADA”), whether a restaurant must provide a gluten-free dish as an accommodation, and finally, whether it may charge an added fee for the accommodation.

Title III of the ADA prohibits discrimination on the basis of disability in the activities of places of public accommodations. Restaurants open to the public fall squarely within this rule, for instance. A disability under the ADA is any mental or physical impairment that substantially limits a major life activity. As to whether celiac disease is considered a disability for ADA purposes, the Justice Department of Justice (“DOJ”), the department in charge of enforcing Title III of the ADA, has already answered in the affirmative. In 2012, the DOJ entered into a settlement with Lesley University, a college in Cambridge, MA that requires the college’s meal plan to provide gluten-free and allergen-free food options.

As to the question of whether all public accommodations must serve gluten-free food, the DOJ has an answer as well: No. The meal plan at issue in the Lesley University situation was a mandatory meal plan for all students living on campus. Students were required to eat the food, so the ADA required a reasonable modification to the plan to accommodate students with celiac disease. While colleges with meal plans should take note of this circumstance, restaurants that serve the public aren’t under the same obligations. Populations that have ready access to other sources of food aren’t likely to fall under the same requirement as the college at issue here.

Finally, the question now becomGluten Free Stampes whether restaurants that do serve gluten-free alternatives and charge an extra fee for them are in violation of the ADA for charging those with celiac disease a premium. This is the subject of a current California class-action lawsuit against P.F. Chang’s, which offers gluten-free food for a $1 surcharge. The argument behind the lawsuit is that the added surcharge has a discriminatory effect against those with the disease. Some commentators have likened this to installing a wheelchair ramp and charging for the privilege of using it. The restaurant chain has defended the practice, stating that the higher costs of specialty ingredients and separate preparation areas necessitate the added surcharge.

For now, the permissibility of the added surcharge on gluten-free items is an open question, but all eyes are on California for the answer. For more information on what accommodations the ADA requires of employers and others with regard to celiac disease and other disabilities, contact the attorneys of McBrayer.

Amanda StubblefieldAmanda B. Stubblefield joined McBrayer as an Associate in 2014 as a member of the litigation department. She received her J.D. from the University of Kentucky College of Law in May of 2014 and was elected to the Order of the Coif. Ms. Stubblefield focuses her practice on general litigation, administrative law, and employment law.

This article is intended as a summary of state and federal law and does not constitute legal advice.

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