It all began when the Union Pacific Railroad told employee Perry Hopman, a combat veteran, on two separate occasions that he could not allow his service dog – a 125-pound Rottweiler named Atlas – to accompany him to work to help him with his PTSD. Hopman received his diagnosis after an 18-month tour of duty in Iraq, where he suffered a traumatic brain injury after a 50-foot fall from a helicopter.
A federal trial jury disagreed with the employer, awarding Hopman $250,000 in damages – and ordered the employer to allow Hopman to bring Atlas to work to help him deal with his ongoing PTSD symptoms.
Hopman worked for Union Pacific Railroad as an engineer. He asked his employer to accommodate his PTSD by allowing his service dog to accompany him to work on overnight runs to another county. Hopman testified that with his PTSD, he suffered flashbacks, depression, anxiety, and debilitating migraine headaches due to his brain injury. For his part, Atlas had received $10,000 worth of service dog training over two years and over 1,000 hours to allow him to remind Hopman to take his medication, to perceive a migraine onset (which allowed Hopman to take medication before the migraine to avoid the most severe symptoms), and to act as a barrier between Hopman and others by providing Hopman space.
Despite the tear-inducing facts, this case is particularly interesting in the disability discrimination context because it does not concern an employee who was having problems performing their essential job duties. Rather, testimony in the case was clear that Hopman, without the assistance of a service dog, was an exemplary employee – a fact that drove the company’s decision to determine that Hopman did not need a service dog to help him perform his job duties and deny his request. In fact, Hopman acknowledged that he had no issue safely performing all functions of his job without his service dog by his side but testified that Atlas’ sheer presence and trained skills would allow him to be more comfortable at work, both physically and mentally.
As such, the case set up the question: are exemplary employees performing satisfactorily without a reasonable accommodation entitled to one under the Americans with Disabilities Act (ADA)? The jury answered a resounding “yes,” thereby expanding the scope of accommodations due an employee under the ADA.
This is how:
Under the ADA and comparable state laws, employers are required to provide reasonable accommodation to an employee with a mental or physical disability to allow the employee to perform the essential functions of the employee’s job. Under the ADA, to get around having to provide an accommodation request, an employer must prove that a disability accommodation is an “undue hardship.” Most cases begin with an employee not performing their essential job functions to the employer’s expectations. This leads to a conversation between the employer and employee that the employee’s disability is at least partly the cause for that sub-par work. The employee makes a request for certain workplace accommodations the employer can provide without causing undue hardship to the employer itself, allowing the employee to perform the essential functions of the job to the employer’s expectations. In other words, most disability discrimination cases arise due to a performance issue. Here, Hopman was “fearful” of what might happen if the dog was not present.
In this case, however, Hopman’s performance was not an issue, and neither was the fact that the requested accommodation would not have cost the employer anything and did not present a direct threat to other employees. The employer’s argument that Atlas was too big to be in a small locomotive cabin and that his presence would distract other employees was futile, turning the focus to the novel accommodation issue of whether an employer is legally required to provide a disabled employed a reasonable accommodation to allow the employee to enjoy the same benefits and privileges as an employee without a disability. Specifically, the court found that the ADA permits an employee to ask for a reasonable accommodation to allow the employee “to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.” This is an obvious expansion of the ADA by most employer and employment-law professionals’ understanding of the statute.
This case is out of the United States District Court of the Eastern District of Arkansas, limiting the scope of the ADA expansion to employers within that jurisdiction, and other jurisdictions with courts that have held similarly – although those are few. Employers who are bound by the court’s ruling should review accommodation requests with these case facts in mind, remembering that the ADA is not only about allowing an employee to perform the employee’s job duties, but also enabling the employee to enjoy the same terms and conditions of employment as other similarly-situated employees. The burden for employers on this issue cannot be overstated as it forces employers to review accommodation requests under a different lens, that being, is the employer doing what it can to ensure the employee is situated on a level playing field as other employees? So, while the holding resulted in Hopman’s scratching Atlas’ floppy ears in delight, it leaves employers scratching their heads to identify what is now required of them when reviewing disability accommodation requests and what the interactive process now entails because it is not just about ensuring the employee can perform adequately. It is now about whether the employee is enjoying equal benefits and privileges of employment while doing so.
Notably, the attorney who represented Hopman had a similar case in San Antonio previously. That court held that the employer violated the ADA by failing to accommodate an Iraq war veteran who also had PTSD. The employer waited more than six months after the employee’s reasonable accommodation request to allow the employee to bring his service dog to work and only after restricting the service dog’s movements.
About the Author: Sara H. Jodka (Member, Columbus) is a member of the firm’s labor and employment department and regularly counsels employers and litigates disability discrimination and other employment-related cases. She is also a dual-certified privacy professional holding both IAPP-US and IAPP-Europe certifications. Sara is the editor of the firm’s All Things HR Blog and the Chair of the Ohio State Bar Association’s Labor and Employment Section Council, which boasts over 1,700 members. She can be reached at 614-744-2943 or SJodka@dickinsonwright.com.