Is predictable attendance an essential function?
Walter had a history of less-than-stellar attendance even before his workplace injury. Seems he made personal appointments during work hours, and his performance review reflected his issues. Walter had some other performance issues, as well, including not being familiar enough with the company’s products. After his injury, he took some time off but was cleared to return to work without restrictions. His performance issues, including attendance, continued.
Walter was put on a performance improvement plan. Unfortunately, Walter did not request additional training that would have helped him, and he continued to take time off for personal appointments without giving adequate notice. As such, he was terminated.
Being unhappy with this turn of events, Walter filed a claim arguing that the employer discriminated against him and retaliated against him in violation of the Americans with Disabilities Act (ADA), and that the reasons the employer cited for the termination were pretextual.
The employer, on the other hand, argued that the termination was because Walter failed to provide notice of his absenteeism, lacked understanding of company products, and failed to follow directions.
The court in this case found in favor of the employer. It indicated that, to establish pretext, Walter needed to show through inconsistencies or contradictions by the employer that the reason for termination was not the reason proffered, but instead discriminatory.
The reasons the employer gave for terminating Walter, including a pattern of absenteeism and deficiency with company product knowledge, were mentioned in Walter’s performance reviews before his injury at work occurred. Walter could not show that his disability was the cause for the termination.
Despite this and other cases, the EEOC contends that reliable attendance is not always an essential function, but the issue would need to be assessed on an individual basis. Therefore, employers in circuits where courts have been more lenient might have more wiggle room, but they need to weigh their options and risk tolerance levels. This court might have ruled differently under a different set of facts.
Stelter v. Wisconsin Physicians Service Insurance Corporation, 7 th Circuit Court of Appeals, No. 18-3689, February 20, 2020.